Central Information Commission
Ajay Vireh vs Chief Commissioner Of Income Tax (Cca) , ... on 23 March, 2023
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/CCABH/A/2022/148333
Ajay Vireh अपीलकता /Appellant
VERSUS
बनाम
CPIO,
OFFICE OF THE COMMISSIONER OF
INCOME TAX(TDS), RTI CELL,
AAYAKAR BHAWAN, HOSHANGABAD
ROAD, BHOPAL-462011, MADHYA
PRADESH. ितवादीगण /Respondent
Date of Hearing : 21/03/2023
Date of Decision : 21/03/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 25/07/2022
CPIO replied on : 23/08/2022
First appeal filed on : 30/08/2022
First Appellate Authority order : 30/09/2022
2nd Appeal/Complaint dated : 08/10/2022
Information sought:
The Appellant filed an RTI application dated 25.07.2022 seeking the following information:1
" RTI application u/s 6(1) of RTI Act 2005 to provide certified copies of documents In respect of DE proceedings and order under rule 56(J) in the case of Ajay Vireh, the then ITO (TDS),Ujjain, request -- Reg.
1. Certified copies of covering letter and enquiry report by the CBI with date of receipt of such report in respect of all the documents as received by the disciplinary authority and as relied upon and mentioned in annexure III to memorandum dated 10/12/2009.
2. Certified copy of all the documents as mentioned in annexure III (1 to 18) to the memorandum dated 10/12/2009, along with date of receipt of all such documents received by the disciplinary authority from CBI as relied upon to institute the DE proceedings.
3. Certified copy of letter and report with date of receipt from CBI, regarding sending of list of all the witnesses as mentioned in annexure IV (1 to 18) of memorandum dated 10/12/2009 along with date of receipt of such letter and list as relied upon to institute the DE proceedings by the disciplinary authority.
4. Certified copies of order sheet entries and all correspondence letters of the file of competent disciplinary authority in respect of charged officer from 22/02/2008 till the date of service of memorandum dated 10/12/2009, held with CBI, CBDT, DG(Vig.), CVC, higher authorities and others.
5. Certified copy of order sheet entries in respect of file of disciplinary authority regarding every proceeding and correspondence letters by the disciplinary authority with others from 10/12/2009 to 17/02/2021.
6. Certified copy of all the order sheet and correspondence done by the enquiry officer with CBI, CVC, DG(Vig.), higher authorities, charged officer from dated 10/12/2009 to 17/02/2021.
7. Certified copy of satisfaction note by the competent authority in respect of suspension order of charged officer.
8. Certified copy of CVC advice no. 008/ITX/012-27635 dated 02/12/2008.
9. Certified copy of correspondence of recommendations made / received from president office, CVC, CBDT, DG(Vig.) with the disciplinary authority.2
10.Certified copy of documents / order sheet / note on which the competent authority formed its opinion to invoke rule 56(J).
11.Certified copy of recommendations by the review committee in view of order under rule 56(J) dated 25/11/2019 along with correspondence letters between competent authority and review committee.
12.Certified copy of minutes of review committee in respect of recommendation to order under rule 56(J).
13.Certified copies of documents / minutes records / reasons, on which observations were arrived by the representation committee, constituted on 20/01/2020, along with order sheet and correspondence with appropriate authority, and other authorities in respect of representation by the officer retired under rule 56(J).
14. Kindly provide any other documents / correspondence related to order under rule 56(J) considered by appropriate authority, review committee, representation committee."
The CPIO furnished a reply to the appellant on 23.08.2022 stating as under:
"The information sought by the applicant under point no. 01 to 09 is related to DE proceedings which is confidential in nature. This information contains correspondence from various Public Authorities. The information sought by the applicant is kept in nature of fiduciary relationship and the larger public interest does not warrant the disclosure of such information, therefore covered under Section 8(1)(e) of the RTI Act.
As information sought by the applicant under point no. 10 to 14 is related to FR 56(j) which contains information related to other Public Authority, details of witnesses, name of complainants etc. which may be used by the applicant in his favour in pending DE and criminal proceedings. The premature disclosure of such information prior to final decision in DE may disrupt the proceedings. The disclosure may also restrict the discretion of the Enquiry Officer to decide as to what documents the applicant will have access to.3
The case of the applicant is under trial and the matter is sub-judice ( before a court of law and also before the Disciplinary Authority ), the disclosure of information sought by the applicant would impede the process of ongoing investigations/proceedings, therefore it is covered by section 8(1)(h) of the RTI Act, the same can not be provided."
Being dissatisfied, the appellant filed a First Appeal dated 30.08.2022. FAA's order, dated 30.09.2022, directed the CPIO to provide the requisite information sought at point no. 10 to 14 related to FR 56(j) after serving/obliterating information regarding assessment of other officers, their personal information, the name of complainants, the members of the Review Committee including the officers assisted the Committee. The details of the complaints may also be not provided as it contains the name of the assesses/ parties in whose cases the allegation of malpractice has been reported.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video-conference.
Respondent: Devendra Katare, ITO & CPIO present through video-conference.
The Appellant expressed his dissatisfaction with the denial of information by the CPIO under the alleged garb of Section 8(1)(h) of RTI Act by putting forth the following contentions -
"....the applicant has been convicted by the Special C.B.I., Court, Indore on 16/12/2022 during criminal proceedings and the applicant has been duly granted bail and stay on sentence by the hon'ble MP High Court, Indore vide order dated 19/01/2023 till the final outcome of appeal before hon'ble MP High Court.
3. The second appellate authority & the CPIO had wrongly denied the sought information to the applicant on the grounds that investigation is pending and the information is held in fiduciary capacity. The applicant in his grounds of appeal has challenged such denial on the basis of various judgements given by hon'ble High Courts and CIC both. The fact that the DE was instituted in 2009 and no further proceedings were carried out by the department for the reasons well known to it, 4 further the relied upon documents were given till 2018 to the delinquent officer and till the last witness examined in the month of Sep. 2019. The C.O. time and again requested for the documents and time and same was denied by the inquiry officer. It is important to mention that the competent authority i.e. Commissioner of Income tax (TDS), Bhopal had never provided the original documents, evidences, order sheets on which he relied upon for instituting of DE proceedings stating that the same is confidential and cannot be given due to pending investigation.
A. It is categorically admitted fact that the departmental proceeding was initiated after due investigation. Further most of the witnesses mentioned in departmental charge sheet were examined in criminal proceedings as well as is DE proceedings both. Thus, such denial has no legal & factual ground itself.
5. That the purpose of RTI act is based on the concepts of true and factual disclosure, however there is no provision to cover up the misdeed by the information provider government Agencies like CBI, income tax department. To deny such information to the accused/delinquent officer, to know and roach to the minute details and facts of his own case and Is required for his own defense in departmental enquiry proceedings. The law does not give arbitrary authority regarding the facts of any charges imposed against the delinquent officer and the delinquent officer has the right as inferred by the constitution itself on principles of equality. Thus, the information by which the delinquent officer is charge sheeted / removed U/R 56j) of CCS conduct rules must be provided to meet the end of justice which is a matter of right provided under constitutional rights. It Is noteworthy to mention that such information is not a threat to security of country and disclosure of such information will not affect the public interest.
6. The hon'ble Central information Commission must appreciate that information sought by the applicant Is not covered in any exclusion provisions of RTI Act as -
(a) The information is not related to the security of this country. (b) The criminal Investigation was over in 2009 it self and CBI filed charge sheet on 20/01/2009 and all the witnesses were examined till November 2022. (c) The DE proceedings was instituted In November 2009 after due consideration of all evidences, records, reports. The DE could not be proceeded by 2018 and then in arbitrary manner the I.O. examined most of the witness In July, August 2019 without providing the relied upon documents and sufficient tone for cross examination to the delinquent officer.5
7. It appears that the competent authority. despite of repeated request denied sought information in biased / prejudice way and acted In autocratic manner so that the delinquent officer cannot challenge his order - (1) for issuance of Of charge sheet under rule 14 (s) to compulsory retire officer under rule 56(s) of CGS rules. Thus the competent authority violated the right as available in the constitution to the delinquent officer and same is done with a motive to punish any how the charge sheeted officer despite of no such evidence of so called conspiracy, demand, acceptance and recovery Or illegal gratification as wrongly charged by the CBI, Bhopal and relied upon by the competent authority.
8. That in criminal court proceedings before the CBI the complainant, two independent witnesses, the I.O. (CBI) in their cross examination could not establish the charges against the delinquent officer. That the applicant had not done any conspiracy with other accuse, never demanded, never accepted any illegal gratification, nor any recovery was made against him...."
In support of his contentions, the Appellant placed reliance on various case laws more particularly giving reference to order pronounced by the Hon'ble High Court of M.P. in W.P. no. 1575 of 2021 in the case titled ' Kamta Prasad' and also referred to case titled Girish Deshpande, Ashok Kumar, UOI v. R.S. Khan, etc. Per contra, the CPIO invited attention of the bench towards his written submission dated 16.03.2023 wherein, he stated inter alia, as under -
I. The Second appeal was filed by the appellant on misleading facts in Annexure "A" that the First Appellate Authority (herein after referred as FAA) remained silent over section 8(1)(e). In this regard, it is humbly submitted that the FAA gave clear findings with regard to applicability of section 8(1)(e) in para 6 & 7 of his order dated 30.09.2022.
2. The appellant has suppressed the facts that the FAA had partly allowed first appeal of the appellant and directed the CPIO to provide information sought by the Appellant at point no. 10 to 14 in his own application, after applying severability clause of section 10 of the RTI Act. Further, the relevant documents such as copies of the listed prosecution documents, brief of the Presenting Officer (PO), deposition of witnesses etc have already been supplied to the appellant during DE proceedings. The listed documents and witnesses are required to be produced and examined during DE. It has been observed that 6 most of the documents relevant to DE have already provided to the appellant and he has also been allowed inspection of the documents related to DE.
3. The contention of the appellant regarding denial of fair and natural justice may not be accepted as the proceedings (criminal & DE) were instituted under the provisions of the relevant law, the inquiring officers and adjudicating authorities are also required to proceed as per these provisions which also based on the principles of natural justice. There is, therefore, no reason why fair opportunity of effective defense would not be afforded to him, including access to the documents that form the basis of disciplinary action. Further, the investigating authorities act within the scope and as per provisions of relevant law made by the legislature to protect the constitutional rights of the appellant, therefore contention of the appellant in this regard has no substance. ( Reliance is placed on para 8 & 8.1.1 of the FAA's order dated 30.09.2022).
4. The contention of the appellant that the FAA invoked section 8(1)(h) without conveying any tenable reason for denying the information is not acceptable, as the FAA denied the information by giving detailed reasons and categorically discussing on each & every piece of information/documents sought for by the appellant in the light of various decisions and also keeping in view judicial pronouncement relied upon by the appellant. The order of FAA was passed with utmost alertness and proper application of mind. (Reference is invited to pare 11 to 18 of the FAA's order dated 30.09.2022)
5. In respect of enquiry report by the CBI. The DA already decided in file that these documents are intended only for the DA, the preliminary enquiry report of investigating agencies are confidential and privileged in nature, the disclosure of which attracts section 11 of the RTI Act related to third party information (reliance is placed on decision of Hon'ble Delhi High Court in case of S.M. Lamba vs S.C. Gupta & another WP 6226/2007 dated 04/05/2010 wherein Hon'ble Court held that the respondent has not committed error taking recourse of section 11 of the RTI Act). The CVC advice has already been provided to the CO i.e., the appellant. In respect of the satisfaction note of the competent authority, the DA has already decided that it is confidential in nature and a privileged document and hence directed to 10 not to be made available to the CO under Rule 14(13) of the CCA Rules. (Reference is invited to pars 10 of the FAA's order dated 30.09.2022).
76. The CPIO vide order u/s 7(1) of RTI, Act, 2005 dated 23.08.2022 had not furnished the information sought citing the provisions of Section 8(1)(e) and Section 8(1)(h) of RTI Act. 2005. The CPI0 had given proper and sufficient grounds of denying the information. (Reliance is placed on order of the FAA dated 30.09.2022)
7. Thereafter, appellant has filed first appeal vide his letter dated 30.08.2022 before the First Appellate Authority/ Commissioner of Income Tax (TDS), Bhopal. The FAA denied the information sought by the appellant at point I to 9 vide his RTI application, after giving detailed reasons in his order dated 30.09.2022. 8. The FAA also found provisions of section 8(1)(g) & attracted in this case beside the provision of section 8(1)(e) & (h) (reference is invited to pars 7 of the FAA's order dated 30.09.2022).
9. The information sought was scattered in files of different authorities, disclosure of which would divert the resources of the public authority, attracts section 7(9) of the RTI Act. 2005. (Reference is invited on pan 5.1 and 5.1.1 of the FAA's order dated 30.09.2022).
10. The FAA in para 5.1.4 of his order produced facts and past conduct of the appellant which are on records available with the department. The non cooperative attitude of the appellant and past conduct of the appellant was necessary to be considered in deciding the first appeal and his RTI application. The appellant did not deny the fact that notice for unauthorised absents were served upon the appellant which is contradictory to the claim of the appellant regarding the fact that he was on leave.
11. The DE & criminal proceedings against the appellant were instituted on same set of the facts to the most of the extent. Therefore, disclosure of information can not be separated in respect of both the proceedings. The proceedings are composite in nature involving other co-accused and also have complicated question of law. The disclosure of information may be decided by the originator of the information i.e., CBI (reliance is placed on para 5.1.2 of the FAA's order dated 30.09.2022).
12. The appellant presented misleading fact that the FAA failed to show as how the disclosure is not in public interest whereas the FAA in para 6 of his order clearly mentioned the reasons how the disclosure is not in public interest.
813. The contention of the appellant regarding his non-involvement in the prosecution case is also not acceptable as the Special Judge, CBI Cases, Indore (Madhya Pradesh) vide order dated 16.12.2022 convicted the appellant with other co-accused and sentenced them to undergo three years Rigorous Imprisonment with total fine of Rs. 80,000/-.
14. The FAA in para 11 of his order dated 30.09.2022 observed that the judgements relied upon by the appellant arc not applicable as they are distinguishable on facts and circumstances and in law. The FAA considered the judicial pronouncements referred by the appellant and detailed discussion was made by the FAA in his order dated 30.09.2022..."
While summing up of his arguments, the CPIO again emphasized on the fact that although the CBI special court case has been concluded; however, the composite departmental proceedings against the Appellant along with 3 other co-accused is still under way. Thus, the information cannot be divulged to the Appellant at this stage in view of Section 8(1)(h) of RTI Act.
Decision:
The Commission upon a perusal of records and after submissions of both the parties notes that the core contention of the Appellant revolves around the issue of denial of information by the CPIO under Section 8(1)(h) of RTI Act. In response to which the CPIO clarified the factual position by explaining that issue/matter pertaining to information sought was still under way with the disciplinary authority under composite proceedings with 3 co-accused and disclosure of which would impede the process of investigation; thus, the information cannot be shared with the Appellant.
Here, it is pertinent to note that the Appellant has not denied the fact that - 'the applicant is facing a departmental enquiry on the perceived charges, evidence of which is gathered by the CBI', in other words, the factum of a pending prosecution has not been denied by the Appellant and considering the nature of documents sought for by the Appellant, it is not out of place for the CPIO to invoke Section 8(1)(h) of the RTI Act for the denial of the information as these are predominantly substantial records of the alleged composite departmental investigation being conducted against the Appellant along with three other co-accused. Moreover, it is not the case that the exemption of Section 8(1)(h) of the RTI Act only provides 9 for exemption when an inquiry/investigation is pending, for the sake of clarity, Section 8(1)(h) of the RTI Act is reproduced hereunder:
"(h) information which would impede the process of investigation or apprehension or prosecution of offenders;"
Section 8(1)(h) of the RTI Act thus provides for more than one aspect of an inquiry/investigation and since in the instant case, investigation in the disciplinary proceedings is underway, the impediment to the process thereof by the disclosure of "all" correspondences/note sheet, etc cannot be ruled out. In respect of DE proceedings and order under rule 56(J) in the case of the Appellant, the appropriateness of the then ITO (TDS),Ujjain, response cannot be ruled out in its entirety.
Having observed as above, the Commission upholds the denial of the information under Section 8(1)(h) of the RTI Act by the CPIO and finds no scope of relief to be ordered in the matter.
The appeal is disposed of accordingly.
सरोज पुनहािन)
Saroj Punhani (सरोज हािन
सूचना आयु )
Information Commissioner (सू
Authenticated true copy
(अिभ मािणत स यािपत ित)
(C.A. Joseph)
Dy. Registrar
011-26179548/ [email protected]
सी. ए. जोसेफ, उप-पंजीयक
दनांक /
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