Central Information Commission
Jugal Krishna Paul vs Chief Commissioner Of Service Tax, ... on 26 November, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/CCSTK/A/2018/131062-BJ
Mr. Jugal Krishna Paul
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
Assistant Commissioner and CPIO, Haldia Central GST, Hqrs
Office of the Commissioner of Haldia Central GST Commissionerate
RTI Cell, 15/1, Strand Road, M. S. Building
5th Floor, Kolkata - 700001
... ितवादीगण /Respondent
Date of Hearing : 25.11.2019
Date of Decision : 26.11.2019
Date of RTI application 27.12.2017
CPIO's response 13.02.2018
Date of the First Appeal 03.03.2018
First Appellate Authority's response 11.04.2018
Date of diarised receipt of Appeal by the Commission 16.05.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information on 03 points regarding the attested copies of records/documents in respect of all the final orders of the CESTAT, Kolkata received in the Haldia Commissionerate and processed/accepted/reviewed during the tenure of Sri B. K. Mallick as Commissioner of Haldia Commissionerate, the attested copy of Note-sheets of the relevant file for the period with effect from the date of placement of the Final Order, till the date of acceptance or review of the said Final Order by Sri B. K. Mallick, the Commissioner, Haldia Commissionerate , etc. The CPIO, vide its letter dated 13.02.2018, provided a point-wise response to the Appellant and requested him to deposit fee as per Rule 4 of the RTI Act, 2005 for receipt of photocopies. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 11.04.2018, referred to several decisions of the Superior Courts in Bristol & West Building Page 1 of 5 Society Vs. Mothew; in woolf Vs. Superior Court, etc. and upheld the CPIO's response dated 13.02.2018.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Jugal Krishna Paul through VC;
Respondent: Mr. Sujit Kumar Saha, CPIO & Assistant Commissioner through VC;
The Appellant reiterated the contents of the RTI application and stated that the copy of Note- sheets as desired by him was not provided by the Respondent. He further contested the order passed by the First Appellate Authority stating that the same was against the provisions of the RTI Act, 2005 and that the copy of Note-sheet was well within the definition of "information" as defined under Section 2(f) of the Act. In support of his contention, the Appellant referred to the decision of the Hon'ble High Court of Delhi in WP (C) No. 9355 of 2009 and CM No. 7144 of 2009 dated 07.10.2010 and the decision of the Commission in Appeal No. CIC/SM/A/2009/000694 dated 08.05.2009, etc. It was informed that he is posted in the Customs Department as Superintendent. In its reply, the Respondent reiterated the response of the CPIO/FAA as also its written submission. With regard to point no. 03 i.e. regarding the copies of Note-sheet, it was informed that the T&R Section denied supplying the same citing/claiming Section 8 of the RTI Act, 2005 and accordingly, a suitable reply was provided to the Appellant. It was further submitted that the Note-sheets which are not covered under the definition Section of "information" could not be furnished since it contains decision making/merely opinion/suggestion/advice or observation on a particular issue of the Government Officer. Moreover, the Appellant in the instant matter is not only a common citizen or a casual applicant but also a colleague of the same office and therefore, the copies of Note-sheet of files as requested could not be supplied as it could embarrass the senior officials. The Respondent further relied upon the decision of the Commission in Appeal No.:-
CIC/CCEBH/A/2017/108029-BJ dated 15.01.2018. The Appellant contested the above averments of the Respondent and submitted that the copy of Note-sheet is covered under the definition of "information" as per the several decisions of the Hon'ble Courts and the Commission.
The Commission was in receipt of a written submission from the Appellant dated Nil wherein while contesting the order of the FAA, he referred to the decision of the Hon'ble Supreme Court in the matter of Collector of Central Excise vs. Rohit Pulp Papers Mills and the decision of the Hon'ble Punjab and Haryana High Court in the matter of Commissioner of Central Excise vs. B. E. Office Automation.
The Commission was also in receipt of a written submission from the Respondent dated 18.11.2019 wherein while reiterating the response of the CPIO/FAA, it was submitted that the FAA had decided the instant matter as per the provisions of the RTI Act, 2005. Moreover, the documents sought for was denied by the FAA taking recourse to the provision of Section 8(1) (e) i.e. 'Fiduciary Relationship' clause which exempts disclosure of any information or supply of documents, as the case may be, and such position is self axiomatically /intrinsically settled by the relevant provisions itself, ipso-facto, it may be postulated that the contentions of the Appellant did not stand to reason particularly regarding the applicability of the provisions of the RTI Act.
Therefore, it was prayed to the Commission to uphold the decision passed by the FAA and reject the Appeal.
Page 2 of 5The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE and Anr. Vs. Aditya Bandopadhyay and Ors), wherein it was held as under:
35..... "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."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the 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 Page 3 of 5 to give any reasons as to why he had taken such a decision in the matter which was before him."
Hearing both the parties at length and after examining the decisions cited above by the parties, the Commission noted that in Appeal No.:-CIC/CCEBH/A/2017/108029-BJ dated 15.01.2018 relied upon by the Respondent, information relating to copy of the note sheet and complaints of the File no. 11(39)5/CIU/BPL/2011 from the O/o Commissioner, Bhopal was sought by the Applicant (Mr. Sudhir Kumar Chandravanshi) wherein the Respondent (Central Excise (HQ), Bhopal) in their defence had taken a view that the information sought contained confidential details of other employees. Moreover, investigation was under consideration in the then matter and therefore, the information sought was also denied under Section 8(1) (h) of the RTI Act, 2005. However, in the instant matter no such argument was put forth by the Respondent instead it was stated that the copies of Note-sheet does not come within the definition Section 2(f) of the RTI Act, 2005. The Commission noted that it is a settled position of law that note sheets/ notings of officers fall within the purview of the definition of information as per Section 2 (f) of the RTI Act, 2005.
In the context of providing the copy of the note sheets made by Sri B. K. Mallick, the Commissioner, Haldia Commissionerate, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Union of India vs. R.S. Khan WP (C) No. 9355 of 2009 and CM No. 7144 of 2009 dated 07.10.2010 wherein it was held as under:
"This Court concurs with the view expressed by the CIC that in the context of a government servant performing official functions and making notes on a file about the performance or conduct of another officer, such noting cannot be said to be given to the government pursuant to a 'fiduciary relationship' with the government within the meaning of Section 8(1)(e) of RTI Act. The Union of India cannot rely upon Section 8(1)(e) of RTI Act, to deny information to the Petitioner in the present case. 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 RTI Act. 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. As regards Section 8(1)(j) of RTI Act, there is no question that nothings 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 case, Section 8(1)(j) of RTI Act was wrongly invoked by the CPIO and by the Appellate Authority to deny information to the Respondent."
Furthermore, in a recent decision the Hon'ble High Court of Delhi in its order dated 12.02.2018 in W.P.(C) 7845/2013 (Paras Nath Singh Vs. Union of India) had held as under:
10. The contention that notings made by a junior officer for use by his superiors is third party information, which requires compliance of Section 11 of the Act, is unmerited. Any noting made in the official records of the Government/Public Authority is information belonging to the concerned Government/Public Authority. The question whether the information relates to a third party is to be determined by the nature of the information and not its source. The Government is not a natural person and all information contained in the official records of the Government / public authority is generated by individuals (whether employed with the Government or not) or other entities. Thus, the reasoning, that the notings or information generated by an employee during the course of his Page 4 of 5 employment is his information and thus has to be treated as relating to a third party, is flawed.
11. Section 8 of the Act provides for exemption from disclosure of certain information and none of the provisions of Section 8 provide for blanket exemption that entitles the respondent to withhold all notings on a file.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the aforesaid decisions of the Superior Courts, the Commission directs the Respondent to provide the information on point no. 03 of the RTI application relating to copy of Note-sheets, as per the provisions of the RTI Act, 2005, within a period of 15 days from the date of receipt of this order.
The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
The Appeal stands disposed with the above direction.
(Bimal Julka) (िबमल जु का)
(Information Commissioner) (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
(K.L. Das) (के .एल.दास)
(Dy. Registrar) (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 26.11.2019
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