Central Information Commission
Rajendra Bhagwat Dond vs Pr.Chief Commissioner Of Income Tax ... on 28 April, 2025
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई िद ी, New Delhi - 110067
File No: CIC/CCITP/A/2024/607001
CIC/CCITP/A/2024/607010
CIC/CCITP/A/2024/607024
Rajendra Bhagwat Dond .....अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Income Tax Officer (HQ) (Audit),
Office of the Chief Commissioner
of Income Tax, Aayakar Bhawan,
12, Sadhu Vaswani Square,
Pune - 411001 .... ितवादीगण /Respondent
Date of Hearing : 25.04.2025
Date of Decision : 25.04.2025
INFORMATION COMMISSIONER : Vinod Kumar Tiwari
The above mentioned Second Appeals have been clubbed together for
decision through common order as these are based on similar RTI
applications of the same appellant against same Respondent Public
Authority.
Page 1 of 22
CIC/CCITP/A/2024/607001
Relevant facts emerging from appeal:
RTI application filed on : 06.09.2023
CPIO replied on : 04.10.2023
First appeal filed on : 03.11.2023
First Appellate Authority's order : 01.12.2023
2nd Appeal/Complaint dated : 19.02.2024
Information sought:
1. The Appellant filed an RTI application (offline) dated 06.09.2023 seeking the following information:
"The applicant retired on superannuation as Income Tax Officer (Sr. Scale) w.e.f 31/05/2020.That while in service and working under the charge of CIT(Audit) Pune, the MOU/Charge Sheet was issued to the undersigned / Applicant by the CIT(Audit) Pune vide Confidential Memorandum No. PN/ CIT(Audit)/Vig /RBD-1/2020-21/995 dated 05/05/2020 ( Trap Case).
In this connection, it is kindly requested to provide the relevant information on the basis of which departmental inquiry proceedings were initiated in the present case."
2. The CPIO furnished a reply to the Appellant on 04.10.2023 stating as under:
"1. After examination of the above referred application, it is seen that the above information sought by the applicant is covered under the exemption u/s 8(1)(h) of the RTI Act. 2005. Section 8(1) (h) of the RTI Act, 2005 exempts certain information from disclosure which is produced below:
"Information which would impede the process of investigation or apprehension or prosecution of offenders".
2. On verification it is seen that the information sought by the applicant is confidential, disclosure of which is not warranted in larger public interest. Under these circumstances the application is rejected u/s 7(1) of the RTI Act, 2005.
The RTI application hereby stands disposed off."
Page 2 of 223. Being dissatisfied, the appellant filed a First Appeal dated 03.11.2023. The FAA vide its order dated 01.12.2023, held as under.
"1. Keeping into consideration the facts, the grounds of appeal raised by the appellant, the additional submissions of the appellant and the legal position, the appeal is disposed as under:-
1.1 In his first ground the appellant has stated that the CPIO has failed to mention the details. of investigation or prosecution pending against the applicant in the office of CIT (Audit) Pune on the date of RTI application.
As it may be seen from the description of the information sought by the appellant, which have been reproduced in para 2 above, that a memorandum of charge (MOC) was issued to the appellant on 19.05.2020 in disproportionate asset case (DA case) initiating a disciplinary proceedings subsequent to registration of DA case by CBI, ACB, Pune for holding assets disproportionate to his known sources of Income. It is also a fact that prior to registration of the DA case, the appellant was trapped on 29.12.2016 by the CBI team while. accepting bribe as part payment from one assessee for passing favorable scrutiny assessment order for AY 2014-15 corresponding to which another disciplinary proceedings were initiated by the department by issuing another memorandum of charge (MOC) on 05.05.2020 in Trap case. It is mentioned here that both the disciplinary proceedings and the enquiries relating thereto are pending as on date. The appellant cannot be oblivious of the two disciplinary proceedings initiated against him by issuing two MOCs by the department and the enquiries proceedings pending. In view of these glaring facts, this ground of appellant is misplaced and thus fail.
1.2 The second ground raised by the appellant is also misplaced and not supported by the facts in view of the investigations pending against him pursuant to initiation of two disciplinary proceedings in Trap case as well as DA case as briefly discussed in the preceding para. It is also pertinent to mention that the appellant, being the charged officer in both the disciplinary proceedings, raised multiple objections on various grounds including three objections on technical/ jurisdictional grounds. Based on such technical/jurisdictional objections the appellant (i.e. the CO) requested to drop/ withdraw the charges made out in the MOCs and imputations thereof, stay the departmental proceedings and to keep them in abeyance till the disposal of his objections. The appellant in his objections also requested to allow opportunity of hearing and to dispose of his objections by speaking order. These objections on technical/jurisdiction ground have been disposed off vide this office letter no. PN/CIT(Audit)/RBO/2023-24/288 dated 12.07.2023 and letter no Page 3 of 22 PN/CIT(Audit)/RBD/2023-24/359 dated 02.08.2023 Subsequent to disposal of such objections, the processes of enquiry have to follow and the same are pending. It may be seen that after disposal of his technical/jurisdictional objections, the appellant started filing multiple RTI applications to harass and impede the investigation which could not be set to motion due to such technical/jurisdictional objections, raised by him. In this context, it would be relevant to note that in plethora of cases it has been held by various courts that while in criminal law, an investigation can be said to be complete with the filing of charge-sheet in the appropriate Court by an Investigation Agency, in cases of vigilance related Inquiries, misconduct and disciplinary matters, the investigation can be said to be over only when the competent authority makes a determination about the culpability or otherwise of the person or persons investigated against. As brought out the investigation in the two disciplinary proceedings in the case of appellant are not yet complete, the same have to be carried out as per prescribed procedure where the appellant shall also get the opportunity to defend his case as per Law. Therefore, in view of these facts and discussions, this ground also of the appellant deserves no consideration.
8.3 In his third ground, the appellant has stated that while rejecting the application even in the case of pending investigation, prosecution concerned RTI Authority has to justify with the valid and cogent reasons that the information sought would hamper the process of enquiry proceedings. It is mentioned here that the enquiries pursuant to initiation of two disciplinary proceedings in Trap case as well as DA case in the case of appellant are pending and the investigation in this regard are not yet complete. Further amongst various categories of information which are exempted from disclosure u/s 8 of the RTI Act, the information falling in the category of clause (h) of section 8(1) of the Act carries absolute exemption from disclosure as held by various Hon'ble Courts in plethora of cases. Further the information sought by the appellant in the instant case are part of internal correspondence/ notes, the disclosure of which may hamper the investigation of the pending disciplinary proceedings. The appellant, being the charged officer in the two disciplinary proceedings, is entitled to defend his case in the manner known to law. Further the disclosure of such information is not in the larger public interest. In this regard following case laws are relevant and the findings of Hon'ble courts are relied upon:-
(i) Vikram Simon v. State information Commissioner, U.P. State Information Commission, Lucknow, AIR 2009 All 51.Page 4 of 22
From the facts on record, it is clear that the petitioner is facing prosecution with reference to the First information Report, the information asked for by the petitioner qua the place of his arrest in the facts of the case is squarely covered by section Bih and, therefore, Court was satisfied that there is no right of the petitioner to ask for such information under the light to Information Act, 2005. The contention raised in that regard by the petitioner is rejected.
(ii) The Commission has taken notice of its earlier decision by a Division Bench in the case of Shri Gobind Jha v. Army Hars, (CIC/80/2006/00039 dt. 01.06.2006), which reads thus:
While in criminal law, an investigation can be said to be completed with the filing of charge-sheet in the appropriate Court by an Investigation Agency, in cases of vigilance related inquiries, misconduct and disciplinary matters, the investigation can be said to be over only when the competent authority makes a determination about the culpability or otherwise of the person or persons investigated against. In that sense, the word 'investigation used in Section 81h) should be construed rather broadly and should include all inquiries, verification of records, assessments and so on which may be pondered in specific casas in all such matters, the inquiry or investigation should be taken as completed only after the competent authority makes a prima facie determination about the presence or absence of guilt on receipt of the investigation inquiry report from the investigation (inquiry officer."
(iii) Hemant Goswami v. Central Bureau of Investigation and another, AIR 2014 P&H 104 Where appellant has sought certain documents along with complete information frum the respondent CBI in relation to the complaint he had made, it was submitted by the respondent CHI that the investigation in the matter was complete and the CBI had even filed a final report/charge-sheet in the Court of CIM and the matter was posted for recording the prosecution evidence. Therefore, the Court was of the opinion that the provisions of Clause (h) of Section (1) of the Right to information Act does not take only the process of investigation within its sweep but also the prosecution of offenders as well. Hence, the order denying to disclose the required information was held proper.
[iv] Institute of Chartered Accountant of India v. Shaunak H. Satya and others, 2012(3) Civil U 453(SC) AIR 20115C 33336 2011 (8) SCC 781 2011(10) IT 128 2011(9) SCALE 639: 2011/6) 5LT 692.
Page 5 of 22The object of Right to Information Act is to harmonize the conflicting public interests that is inuring transparency to bring in accountability and containing corruption on the one hand and at the same time ensure that the revelation of information, in actual practice, does not harm or adversely affect other public interests. Therefore, when Section B exempt certain information from being disclosed, it should not be considered to be a fetter on the right to information but as an equally important provision protecting other public interests essential for the fulfilment and preservation of democratic ideals Among the tan categories of information which are exempted from disclosure under section 8 of the Right to Information Act, six categories which are described in Cause (a),
(b) (c) (f), (g) and (h) carry absolute exemption, information enumerated in Clause (d), (e) and (i) on the other hand get only conditional exemption, that is, the exemption is subject to the overriding power of the competent authority under the Right to information Act in larger public interest to direct disclosure of such information
(v) Haryana Public Service Commission, Chandigarh v. State Information Commission, A 2005 P&H 14 There is a absolute bar on six out of ten exceptions namely clauses (al. (bl. 10. 11. g) and (The Central or State Public Information Officer has been left with no option except to refuse to divulge information in respect of subjects covered by those six clauses. For the rest of the subjects covered by remaining classes of section of the Act, the information officers have to record findings by assessing the imparative weight between the public interest and the secrecy. if public interest outweighs private interest, then information has ta be divulges. Otherwise, the officer could record refusal to divulge.
(vi) Gulab Singh Rana, Chennai v. Central Public Information Officer, Indian Overseas Bank, Central Office, #763 Anna Salai, Chennai, AIR 2022 (NOC) 263 (Mad).
The note file, opinions, views of the Disciplinary Authority may vary from time to time based on the information and based on the collection of facts and evidences. Even at later point of time, initial opinion may not be final opinion in many cases. Subsequent facts may provide a different views and opinion and therefore, if the copy of the opinion and views are supplied, it will create unnecessary hindrance for the peaceful investigation, interrogation and to passed with the departmental disciplinary proceedings as well as the criminal proceedings. For example, on receipt of the preliminary report, the Disciplinary Authority would have formed certain opinions or express some views Page 6 of 22 However, those opinions and views cannot be construed as final, as far as the decisions to be taken. During subsequent period, if further documents are made available or certain other facts are placed, then the Disciplinary Authority may change his opinion or views. This exactly the reason why, in disciplinary case, the rule contemplates opportunities to the delinquent officials. Therefore, the internal office memorandum containing opinion/ views if supplied, undoubtedly, would create unnecessary sues as the petitioner will certainly rely on the document for the purpose of the destroying the case.
However, any accused/ delinquent officials is entitled to defend his case in the manner known to law. Thus, furnishing of such opinions and views of the Disciplinary Authority at various stages, if provided under the RTI Act, then it will hamper the continuation of the disciplinary proceeding and further, disrupt the investigation to be conducted by the investing agency. Therefore, denial to provide information relating to the letter received From CBI for seeking sanctioning a copy of internal office memorandum containing opinion/views of Disciplinary Authority is proper.
1.4 In the fourth and last ground, the appellant has disputed the findings of the CPIO that no larger public interest is served by sharing the requested information, in my considered opinion the stand taken by the CPIO in correct. Since the requested information pertain to the two. pending disciplinary proceedings in the case of appellant himself, corresponding to which the Investigations are not yet complete, the sharing of any such information is not at all in larger public interest. Therefore 1 am inclined to agree with the view of the CPIO.
1.5. in his written submissions dated 05.10.2023, the appellant has cited a case laws to support his request for supply of information sought by him. With due regard to Hon'ble courts. facts are distinguishable and the request of the appellant cannot be acceded to in view of the facts and the case laws discussed herein above.
2. Keeping in view the facts, the pending investigations consequent to initiation of two disciplinary proceedings in the case of the appellant, the case laws discussed above, I am in agreement with the view of the CPIO that the information sought by the appellant falls in the category of clause (h) of section 8(1) of the RTI Act and supply of which may impede the process of investigation and further the disclosure of same doesn't Page 7 of 22 serve the larger public interest. Accordingly, I don't see any tangible reason to differ from the stand of the CPIO.
3. Accordingly, the appeal of Sh. Rajendra B. Dond, is disposed off with above observations and his request to allow the appeal is declined."
CIC/CCITP/A/2024/607010 Relevant facts emerging from appeal:
RTI application filed on : 06.09.2023 CPIO replied on : 04.10.2023 First appeal filed on : 03.11.2023 First Appellate Authority's order : 01.12.2023 2nd Appeal/Complaint dated : 19.02.2024 Information sought:
1. The Appellant filed an RTI application (offline) dated 06.09.2023 seeking the following information:
"The applicant retired on superannuation as Income Tax Officer (Sr. Scale) w.e.f. 31/05/2020.That while in service and working under the charge of CIT(Audit) Pune, the MOU/Charge Sheet was issued to the undersigned / Applicant by the CIT(Audit) Pune vide Confidential Memorandum No. PN/ CIT(Audit) /RBD-2/Vig/2020-21/ 7 dated 19/05/2020 ( Disproportionate Assets Case).
In this connection, it is kindly requested to provide the relevant information on the basis of which departmental inquiry proceedings were initiated in the present case"
2. The CPIO furnished a reply to the Appellant on 04.10.2023 stating as under:
"1. After examination of the above referred application, it is seen that the above information sought by the applicant is covered under the exemption u/s 8(1)(h) of the RTI Act. 2005. Section 8(1) (h) of the RTI Act, 2005 exempts certain information from disclosure which is produced below:
"Information which would impede the process of investigation or apprehension or prosecution of offenders".
2. On verification it is seen that the information sought by the applicant is confidential, disclosure of which is not warranted in larger public Page 8 of 22 interest. Under these circumstances the application is rejected u/s 7(1) of the RTI Act, 2005.
The RTI application hereby stands disposed off."
3. Being dissatisfied, the appellant filed a First Appeal dated 03.11.2023. The FAA vide its order dated 01.12.2023 upheld the reply of the CPIO with the following observations:
"1. Keeping into consideration the facts, the grounds of appeal raised by the appellant, the additional submissions of the appellant and the legal position, the appeal is disposed as under:-
1.1 In his first ground the appellant has stated that the CPIO has failed to mention the details. of investigation or prosecution pending against the applicant in the office of CIT (Audit) Pune on the date of RTI application.
As it may be seen from the description of the information sought by the appellant, which have been reproduced in para 2 above, that a memorandum of charge (MOC) was issued to the appellant on 19.05.2020 in disproportionate asset case (DA case) initiating a disciplinary proceedings subsequent to registration of DA case by CBI, ACB, Pune for holding assets disproportionate to his known sources of Income. It is also a fact that prior to registration of the DA case, the appellant was trapped on 29.12.2016 by the CBI team while. accepting bribe as part payment from one assessee for passing favorable scrutiny assessment order for AY 2014-15 corresponding to which another disciplinary proceedings were initiated by the department by issuing another memorandum of charge (MOC) on 05.05.2020 in Trap case. It is mentioned here that both the disciplinary proceedings and the enquiries relating thereto are pending as on date. The appellant cannot be oblivious of the two disciplinary proceedings initiated against him by issuing two MOCs by the department and the enquiries proceedings pending. In view of these glaring facts, this ground of appellant is misplaced and thus fail.
1.2 The second ground raised by the appellant is also misplaced and not supported by the facts in view of the investigations pending against him pursuant to initiation of two disciplinary proceedings in Trap case as well as DA case as briefly discussed in the preceding para. It is also pertinent to mention that the appellant, being the charged officer in both the disciplinary proceedings, raised multiple objections on various grounds including three objections on technical/ jurisdictional grounds. Based on such technical/jurisdictional objections the appellant (i.e. the CO) requested to drop/ withdraw the charges made out in the MOCs and Page 9 of 22 imputations thereof, stay the departmental proceedings and to keep them in abeyance till the disposal of his objections. The appellant in his objections also requested to allow opportunity of hearing and to dispose of his objections by speaking order. These objections on technical/jurisdiction ground have been disposed off vide this office letter no. PN/CIT(Audit)/RBO/2023-24/288 dated 12.07.2023 and letter no PN/CIT(Audit)/RBD/2023-24/359 dated 02.08.2023 Subsequent to disposal of such objections, the processes of enquiry have to follow and the same are pending. It may be seen that after disposal of his technical/jurisdictional objections, the appellant started filing multiple RTI applications to harass and impede the investigation which could not be set to motion due to such technical/jurisdictional objections, raised by him. In this context, it would be relevant to note that in plethora of cases it has been held by various courts that while in criminal law, an investigation can be said to be complete with the filing of charge-sheet in the appropriate Court by an Investigation Agency, in cases of vigilance related Inquiries, misconduct and disciplinary matters, the investigation can be said to be over only when the competent authority makes a determination about the culpability or otherwise of the person or persons investigated against. As brought out the investigation in the two disciplinary proceedings in the case of appellant are not yet complete, the same have to be carried out as per prescribed procedure where the appellant shall also get the opportunity to defend his case as per Law. Therefore, in view of these facts and discussions, this ground also of the appellant deserves no consideration.
8.3 In his third ground, the appellant has stated that while rejecting the application even in the case of pending investigation, prosecution concerned RTI Authority has to justify with the valid and cogent reasons that the information sought would hamper the process of enquiry proceedings. It is mentioned here that the enquiries pursuant to initiation of two disciplinary proceedings in Trap case as well as DA case in the case of appellant are pending and the investigation in this regard are not yet complete. Further amongst various categories of information which are exempted from disclosure u/s 8 of the RTI Act, the information falling in the category of clause (h) of section 8(1) of the Act carries absolute exemption from disclosure as held by various Hon'ble Courts in plethora of cases. Further the information sought by the appellant in the instant case are part of internal correspondence/ notes, the disclosure of which may hamper the investigation of the pending disciplinary proceedings. The appellant, being the charged officer in the two disciplinary proceedings, is entitled to defend his case in the manner known to law. Further the disclosure of such information is not in the larger public Page 10 of 22 interest. In this regard following case laws are relevant and the findings of Hon'ble courts are relied upon:-
(i) Vikram Simon v. State information Commissioner, U.P. State Information Commission, Lucknow, AIR 2009 All 51.
From the facts on record, it is clear that the petitioner is facing prosecution with reference to the First information Report, the information asked for by the petitioner qua the place of his arrest in the facts of the case is squarely covered by section Bih and, therefore, Court was satisfied that there is no right of the petitioner to ask for such information under the light to Information Act, 2005. The contention raised in that regard by the petitioner is rejected.
(ii) The Commission has taken notice of its earlier decision by a Division Bench in the case of Shri Gobind Jha v. Army Hars, (CIC/80/2006/00039 dt. 01.06.2006), which reads thus:
While in criminal law, an investigation can be said to be completed with the filing of charge-sheet in the appropriate Court by an Investigation Agency, in cases of vigilance related inquiries, misconduct and disciplinary matters, the investigation can be said to be over only when the competent authority makes a determination about the culpability or otherwise of the person or persons investigated against. In that sense, the word 'investigation used in Section 81h) should be construed rather broadly and should include all inquiries, verification of records, assessments and so on which may be pondered in specific casas in all such matters, the inquiry or investigation should be taken as completed only after the competent authority makes a prima facie determination about the presence or absence of guilt on receipt of the investigation inquiry report from the investigation (inquiry officer."
(iii) Hemant Goswami v. Central Bureau of Investigation and another, AIR 2014 P&H 104 Where appellant has sought certain documents along with complete information frum the respondent CBI in relation to the complaint he had made, it was submitted by the respondent CHI that the investigation in the matter was complete and the CBI had even filed a final report/charge-sheet in the Court of CIM and the matter was posted for recording the prosecution evidence. Therefore, the Court was of the opinion that the provisions of Clause (h) of Section (1) of the Right to information Act does not take only the process of investigation within its sweep but also the prosecution of offenders as well. Hence, the order denying to disclose the required information was held proper.Page 11 of 22
[iv] Institute of Chartered Accountant of India v. Shaunak H. Satya and others, 2012(3) Civil U 453(SC) AIR 20115C 33336 2011 (8) SCC 781 2011(10) IT 128 2011(9) SCALE 639: 2011/6) 5LT 692.
The object of Right to Information Act is to harmonize the conflicting public interests that is inuring transparency to bring in accountability and containing corruption on the one hand and at the same time ensure that the revelation of information, in actual practice, does not harm or adversely affect other public interests. Therefore, when Section B exempt certain information from being disclosed, it should not be considered to be a fetter on the right to information but as an equally important provision protecting other public interests essential for the fulfilment and preservation of democratic ideals Among the tan categories of information which are exempted from disclosure under section 8 of the Right to Information Act, six categories which are described in Cause (a),
(b) (c) (f), (g) and (h) carry absolute exemption, information enumerated in Clause (d), (e) and (i) on the other hand get only conditional exemption, that is, the exemption is subject to the overriding power of the competent authority under the Right to information Act in larger public interest to direct disclosure of such information
(v) Haryana Public Service Commission, Chandigarh v. State Information Commission, A 2005 P&H 14 There is a absolute bar on six out of ten exceptions namely clauses (al. (bl. 10. 11. g) and (The Central or State Public Information Officer has been left with no option except to refuse to divulge information in respect of subjects covered by those six clauses. For the rest of the subjects covered by remaining classes of section of the Act, the information officers have to record findings by assessing the imparative weight between the public interest and the secrecy. if public interest outweighs private interest, then information has ta be divulges. Otherwise, the officer could record refusal to divulge.
(vi) Gulab Singh Rana, Chennai v. Central Public Information Officer, Indian Overseas Bank, Central Office, #763 Anna Salai, Chennai, AIR 2022 (NOC) 263 (Mad).
The note file, opinions, views of the Disciplinary Authority may vary from time to time based on the information and based on the collection of facts and evidences. Even at later point of time, initial opinion may not be final opinion in many cases. Subsequent facts may provide a different views and opinion and therefore, if the copy of the opinion and views are supplied, it will create unnecessary hindrance for the peaceful Page 12 of 22 investigation, interrogation and to passed with the departmental disciplinary proceedings as well as the criminal proceedings. For example, on receipt of the preliminary report, the Disciplinary Authority would have formed certain opinions or express some views However, those opinions and views cannot be construed as final, as far as the decisions to be taken. During subsequent period, if further documents are made available or certain other facts are placed, then the Disciplinary Authority may change his opinion or views. This exactly the reason why, in disciplinary case, the rule contemplates opportunities to the delinquent officials. Therefore, the internal office memorandum containing opinion/ views if supplied, undoubtedly, would create unnecessary sues as the petitioner will certainly rely on the document for the purpose of the destroying the case.
However, any accused/ delinquent officials is entitled to defend his case in the manner known to law. Thus, furnishing of such opinions and views of the Disciplinary Authority at various stages, if provided under the RTI Act, then it will hamper the continuation of the disciplinary proceeding and further, disrupt the investigation to be conducted by the investing agency. Therefore, denial to provide information relating to the letter received From CBI for seeking sanctioning a copy of internal office memorandum containing opinion/views of Disciplinary Authority is proper.
1.4 In the fourth and last ground, the appellant has disputed the findings of the CPIO that no larger public interest is served by sharing the requested information, in my considered opinion the stand taken by the CPIO in correct. Since the requested information pertain to the two. pending disciplinary proceedings in the case of appellant himself, corresponding to which the Investigations are not yet complete, the sharing of any such information is not at all in larger public interest. Therefore 1 am inclined to agree with the view of the CPIO.
1.5. in his written submissions dated 05.10.2023, the appellant has cited a case laws to support his request for supply of information sought by him. With due regard to Hon'ble courts. facts are distinguishable and the request of the appellant cannot be acceded to in view of the facts and the case laws discussed herein above.
2. Keeping in view the facts, the pending investigations consequent to initiation of two disciplinary proceedings in the case of the appellant, the Page 13 of 22 case laws discussed above, I am in agreement with the vsiew of the CPIO that the information sought by the appellant falls in the category of clause (h) of section 8(1) of the RTI Act and supply of which may impede the process of investigation and further the disclosure of same doesn't serve the larger public interest. Accordingly, I don't see any tangible reason to differ from the stand of the CPIO.
3. Accordingly, the appeal of Sh. Rajendra B. Dond, is disposed off with above observations and his request to allow the appeal is declined."
CIC/CCITP/A/2024/607024 Relevant facts emerging from appeal:
RTI application filed on : 06.09.2023 CPIO replied on : 04.10.2023 First appeal filed on : 03.11.2023 First Appellate Authority's order : 01.12.2023 2nd Appeal/Complaint dated : 19.02.2024 Information sought:
1. The Appellant filed an RTI application (offline) dated 06.09.2023 seeking the following information:
"The applicant retired on superannuation as Income Tax Officer (Sr. Scale) w.e.f 31/05/2020. That while in service and working under the charge of CIT(Audit) Pune the MOU/Charge Sheet was issued to the undersigned/Applicant by the CIT(Audit) Pune vide Confidential Memorandum No. PN/ CIT(Audit) /RBD-2/Vig/2020-21/7 dated 19/05/2020 (le Disproportionate Assets Case).
The proceedings were vehemently objected by the undersigned by way of application(s) on various multiple grounds on which factual report was called from the Inquiry Officer. Thereafter, as evident from the letter dated 23/08/2023, addressed to the Inquiry Officer and copy endorsed to the undersigned and others, the CIT(Audit)Pune has disposed off the objections after considering the factual report of Inquiry Officer, but despite of opportunity of being heard to the undersigned (Copy enclosed). In this connection, it is kindly requested to provide the copy of factual report submitted by the Inquiry Officer on the objections raised by the Charged Officer, in DP related to DA case as mentioned in para No.2 of letter dated 23/08/2023."Page 14 of 22
2. The CPIO furnished a reply to the Appellant on 04.10.2023 stating as under:
"1. After examination of the above referred application, it is seen that the above information sought by the applicant is covered under the exemption u/s 8(1)(h) of the RTI Act. 2005. Section 8(1) (h) of the RTI Act, 2005 exempts certain information from disclosure which is produced below:
"Information which would impede the process of investigation or apprehension or prosecution of offenders".
3. On verification it is seen that the information sought by the applicant is confidential, disclosure of which is not warranted in larger public interest. Under these circumstances the application is rejected u/s 7(1) of the RTI Act, 2005.
The RTI application hereby stands disposed off."
3. Being dissatisfied, the appellant filed a First Appeal dated 03.11.2023. The FAA vide its order dated 01.12.2023 upheld the reply of the CPIO with the following observations:
"1. Keeping into consideration the facts, the grounds of appeal raised by the appellant, the additional submissions of the appellant and the legal position, the appeal is disposed as under:-
1.1 In his first ground the appellant has stated that the CPIO has failed to mention the details. of investigation or prosecution pending against the applicant in the office of CIT (Audit) Pune on the date of RTI application.
As it may be seen from the description of the information sought by the appellant, which have been reproduced in para 2 above, that a memorandum of charge (MOC) was issued to the appellant on 19.05.2020 in disproportionate asset case (DA case) initiating a disciplinary proceedings subsequent to registration of DA case by CBI, ACB, Pune for holding assets disproportionate to his known sources of Income. It is also a fact that prior to registration of the DA case, the appellant was trapped on 29.12.2016 by the CBI team while. accepting bribe as part payment from one assessee for passing favorable scrutiny assessment order for AY 2014-15 corresponding to which another disciplinary proceedings were initiated by the department by issuing another memorandum of charge (MOC) on 05.05.2020 in Trap case. It is mentioned here that both the disciplinary proceedings and the enquiries relating thereto are pending as on date. The appellant cannot be oblivious of the two disciplinary proceedings initiated against him by Page 15 of 22 issuing two MOCs by the department and the enquiries proceedings pending. In view of these glaring facts, this ground of appellant is misplaced and thus fail.
1.2 The second ground raised by the appellant is also misplaced and not supported by the facts in view of the investigations pending against him pursuant to initiation of two disciplinary proceedings in Trap case as well as DA case as briefly discussed in the preceding para. It is also pertinent to mention that the appellant, being the charged officer in both the disciplinary proceedings, raised multiple objections on various grounds including three objections on technical/ jurisdictional grounds. Based on such technical/jurisdictional objections the appellant (i.e. the CO) requested to drop/ withdraw the charges made out in the MOCs and imputations thereof, stay the departmental proceedings and to keep them in abeyance till the disposal of his objections. The appellant in his objections also requested to allow opportunity of hearing and to dispose of his objections by speaking order. These objections on technical/jurisdiction ground have been disposed off vide this office letter no. PN/CIT(Audit)/RBO/2023-24/288 dated 12.07.2023 and letter no PN/CIT(Audit)/RBD/2023-24/359 dated 02.08.2023 Subsequent to disposal of such objections, the processes of enquiry have to follow and the same are pending. It may be seen that after disposal of his technical/jurisdictional objections, the appellant started filing multiple RTI applications to harass and impede the investigation which could not be set to motion due to such technical/jurisdictional objections, raised by him. In this context, it would be relevant to note that in plethora of cases it has been held by various courts that while in criminal law, an investigation can be said to be complete with the filing of charge-sheet in the appropriate Court by an Investigation Agency, in cases of vigilance related Inquiries, misconduct and disciplinary matters, the investigation can be said to be over only when the competent authority makes a determination about the culpability or otherwise of the person or persons investigated against. As brought out the investigation in the two disciplinary proceedings in the case of appellant are not yet complete, the same have to be carried out as per prescribed procedure where the appellant shall also get the opportunity to defend his case as per Law. Therefore, in view of these facts and discussions, this ground also of the appellant deserves no consideration.
8.3 In his third ground, the appellant has stated that while rejecting the application even in the case of pending investigation, prosecution concerned RTI Authority has to justify with the valid and cogent reasons that the information sought would hamper the process of enquiry proceedings. It is mentioned here that the enquiries pursuant to initiation Page 16 of 22 of two disciplinary proceedings in Trap case as well as DA case in the case of appellant are pending and the investigation in this regard are not yet complete. Further amongst various categories of information which are exempted from disclosure u/s 8 of the RTI Act, the information falling in the category of clause (h) of section 8(1) of the Act carries absolute exemption from disclosure as held by various Hon'ble Courts in plethora of cases. Further the information sought by the appellant in the instant case are part of internal correspondence/ notes, the disclosure of which may hamper the investigation of the pending disciplinary proceedings. The appellant, being the charged officer in the two disciplinary proceedings, is entitled to defend his case in the manner known to law. Further the disclosure of such information is not in the larger public interest. In this regard following case laws are relevant and the findings of Hon'ble courts are relied upon:-
(i) Vikram Simon v. State information Commissioner, U.P. State Information Commission, Lucknow, AIR 2009 All 51.
From the facts on record, it is clear that the petitioner is facing prosecution with reference to the First information Report, the information asked for by the petitioner qua the place of his arrest in the facts of the case is squarely covered by section Bih and, therefore, Court was satisfied that there is no right of the petitioner to ask for such information under the light to Information Act, 2005. The contention raised in that regard by the petitioner is rejected.
(ii) The Commission has taken notice of its earlier decision by a Division Bench in the case of Shri Gobind Jha v. Army Hars, (CIC/80/2006/00039 dt. 01.06.2006), which reads thus:
While in criminal law, an investigation can be said to be completed with the filing of charge-sheet in the appropriate Court by an Investigation Agency, in cases of vigilance related inquiries, misconduct and disciplinary matters, the investigation can be said to be over only when the competent authority makes a determination about the culpability or otherwise of the person or persons investigated against. In that sense, the word 'investigation used in Section 81h) should be construed rather broadly and should include all inquiries, verification of records, assessments and so on which may be pondered in specific casas in all such matters, the inquiry or investigation should be taken as completed only after the competent authority makes a prima facie determination about the presence or absence of guilt on receipt of the investigation inquiry report from the investigation (inquiry officer."Page 17 of 22
(iii) Hemant Goswami v. Central Bureau of Investigation and another, AIR 2014 P&H 104 Where appellant has sought certain documents along with complete information frum the respondent CBI in relation to the complaint he had made, it was submitted by the respondent CHI that the investigation in the matter was complete and the CBI had even filed a final report/charge-sheet in the Court of CIM and the matter was posted for recording the prosecution evidence. Therefore, the Court was of the opinion that the provisions of Clause (h) of Section (1) of the Right to information Act does not take only the process of investigation within its sweep but also the prosecution of offenders as well. Hence, the order denying to disclose the required information was held proper.
[iv] Institute of Chartered Accountant of India v. Shaunak H. Satya and others, 2012(3) Civil U 453(SC) AIR 20115C 33336 2011 (8) SCC 781 2011(10) IT 128 2011(9) SCALE 639: 2011/6) 5LT 692.
The object of Right to Information Act is to harmonize the conflicting public interests that is inuring transparency to bring in accountability and containing corruption on the one hand and at the same time ensure that the revelation of information, in actual practice, does not harm or adversely affect other public interests. Therefore, when Section B exempt certain information from being disclosed, it should not be considered to be a fetter on the right to information but as an equally important provision protecting other public interests essential for the fulfilment and preservation of democratic ideals Among the tan categories of information which are exempted from disclosure under section 8 of the Right to Information Act, six categories which are described in Cause (a),
(b) (c) (f), (g) and (h) carry absolute exemption, information enumerated in Clause (d), (e) and (i) on the other hand get only conditional exemption, that is, the exemption is subject to the overriding power of the competent authority under the Right to information Act in larger public interest to direct disclosure of such information
(v) Haryana Public Service Commission, Chandigarh v. State Information Commission, A 2005 P&H 14 There is a absolute bar on six out of ten exceptions namely clauses (al. (bl. 10. 11. g) and (The Central or State Public Information Officer has been left with no option except to refuse to divulge information in respect of subjects covered by those six clauses. For the rest of the subjects covered by remaining classes of section of the Act, the information officers have to record findings by assessing the imparative weight between the public interest and the secrecy. if public interest Page 18 of 22 outweighs private interest, then information has ta be divulges. Otherwise, the officer could record refusal to divulge.
(vi) Gulab Singh Rana, Chennai v. Central Public Information Officer, Indian Overseas Bank, Central Office, #763 Anna Salai, Chennai, AIR 2022 (NOC) 263 (Mad).
The note file, opinions, views of the Disciplinary Authority may vary from time to time based on the information and based on the collection of facts and evidences. Even at later point of time, initial opinion may not be final opinion in many cases. Subsequent facts may provide a different views and opinion and therefore, if the copy of the opinion and views are supplied, it will create unnecessary hindrance for the peaceful investigation, interrogation and to passed with the departmental disciplinary proceedings as well as the criminal proceedings. For example, on receipt of the preliminary report, the Disciplinary Authority would have formed certain opinions or express some views However, those opinions and views cannot be construed as final, as far as the decisions to be taken. During subsequent period, if further documents are made available or certain other facts are placed, then the Disciplinary Authority may change his opinion or views. This exactly the reason why, in disciplinary case, the rule contemplates opportunities to the delinquent officials. Therefore, the internal office memorandum containing opinion/ views if supplied, undoubtedly, would create unnecessary sues as the petitioner will certainly rely on the document for the purpose of the destroying the case.
However, any accused/ delinquent officials is entitled to defend his case in the manner known to law. Thus, furnishing of such opinions and views of the Disciplinary Authority at various stages, if provided under the RTI Act, then it will hamper the continuation of the disciplinary proceeding and further, disrupt the investigation to be conducted by the investing agency. Therefore, denial to provide information relating to the letter received From CBI for seeking sanctioning a copy of internal office memorandum containing opinion/views of Disciplinary Authority is proper.
1.4 In the fourth and last ground, the appellant has disputed the findings of the CPIO that no larger public interest is served by sharing the requested information, in my considered opinion the stand taken by the CPIO in correct. Since the requested information pertain to the two. pending disciplinary proceedings in the case of appellant himself, Page 19 of 22 corresponding to which the Investigations are not yet complete, the sharing of any such information is not at all in larger public interest. Therefore 1 am inclined to agree with the view of the CPIO.
1.5. in his written submissions dated 05.10.2023, the appellant has cited a case laws to support his request for supply of information sought by him. With due regard to Hon'ble courts. facts are distinguishable and the request of the appellant cannot be acceded to in view of the facts and the case laws discussed herein above.
2. Keeping in view the facts, the pending investigations consequent to initiation of two disciplinary proceedings in the case of the appellant, the case laws discussed above, I am in agreement with the view of the CPIO that the information sought by the appellant falls in the category of clause (h) of section 8(1) of the RTI Act and supply of which may impede the process of investigation and further the disclosure of same doesn't serve the larger public interest. Accordingly, I don't see any tangible reason to differ from the stand of the CPIO.
3. Accordingly, the appeal of Sh. Rajendra B. Dond, is disposed off with above observations and his request to allow the appeal is declined."
4. Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeals.
Relevant Facts emerged during Hearing:
The following were present:-
Appellant: He, along with Shri Shekhar Madhukar Khomane present through videoconference.
Respondent: Ms. Bharati Deshmukh, ACIT (OSD)/CPIO along with Ms. Neelam D'souza, ITO (OSD) present through videoconference.
5. Written submissions of the Respondent are taken on record.
6. The Appellant's representative while reiterating the contents of RTI application expressed his dissatisfaction to the fact that the information has been wrongly denied by the CPIO under Section 8(1)(h) of the RTI Act without any justification for such denial. He pleaded that such information is needed to defend his case in Disciplinary proceedings, therefore, the Respondent should Page 20 of 22 be directed to provide relevant information. In case file No. CIC/CCITP/A/2024/607024, he added that I.O. appointed initially was not competent authority and it was admitted by the I.O. himself at the relevant time. Further, decisions on the objections raised by him has been taken one sided without giving him opportunity of being heard.
7. The respondent by inviting attention of the Commission towards the contents of her initial reply and FAA's order reiterated their stand for denial of information under Section 8 (1) (h) of the RTI Act. She stated that a reference may be made to the FAA's order which answers each contention/ground of the appellant's appeal in a detail. Lastly, she apprised the bench in case file No. CIC/CCITP/A/2024/607024 that since the information sought by the appellant relates to internal documents/correspondences which are confidential in nature, therefore, it cannot be disclosed under the RTI Act.
Decision:
8. The Commission, after adverting to the facts and circumstances of the case, hearing both the parties and perusal of the records notes that the core contention of the Appellant revolves around the issue of denial of information by the CPIO and FAA 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 under investigation and disclosure of requested information would impede the process of investigation; hence, the information could not be shared with the Appellant at that time in view of Section 8(1)(h) of the RTI Act. Inquiry proceedings are still not completed. Further, decision on his objections has already been conveyed to the appellant.
9. In this regard, the Commission finds no infirmity in the denial of information by the CPIO under Section 8(1)(h) of RTI Act in the first instance supplemented with the detailed order passed by the FAA which is self-explanatory in terms of the RTI Act. The contents of information sought in the instant RTI applications itself shows that disclosure of such information would apparently impede the process of investigation in terms of Section 8(1)(h) of RTI Act. For the sake of clarity, Section 8(1)(h) of the RTI Act is reproduced hereunder:
Page 21 of 22"....(h) information which would impede the process of investigation or apprehension or prosecution of offenders;"
10. Having observed as above and since, the issue flagged by the appellant has appropriately been addressed by the respondent as per the provisions of the RTI Act, no scope of intervention remains in these matters.
The appeals are disposed of accordingly.
Vinod Kumar Tiwari (िवनोद कुमार ितवारी) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स!ािपत ित) (S. Anantharaman) Dy. Registrar 011- 26181927 Date Copy To:
THE FAA, Commissioner of Income Tax (Audit), Aayakar Bhawan, 12, Sadhu Vaswani Square, Pune - 411001 Page 22 of 22 Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
Nil Powered by TCPDF (www.tcpdf.org)