Central Information Commission
Manju vs Department Of Posts on 14 June, 2017
CENTRAL INFORMATION COMMISSION
(Room No.315, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)
Prof. M. Sridhar Acharyulu (Madabhushi Sridhar)
Central Information Commissioner
CIC/POSTS/A/2017/130777
Manju v. PIO, Department of Posts
RTI : 27.01.2017
FAO : 30.03.2017
Second Appeal : 01.05.2017
Hearing : 06.06.2017
Appellant : Present
Public Authority : Ms. Shikha Jain
Decided On : 14.06.2017
FINAL ORDER
FACTS:
1. Appellant filed RTI application seeking copies of attendance registers of BNPL Booking Branch IPHO for the period October 2012 to April 2014 to ensure his attendance, Nominal Role BNPL Booking Branch of IPHO New Delhi for the period October 2012 to April 2014 to ensure duties performed at BNPL counter, Order book of Sr. Post Master and DPM Counter of IPHO for the period October 2012 to April 2014 to confirm duty at BNPL counters IPHO, etc. CPIO replied that his was a matter of grievance and not a RTI request.
2. Ms Shikha Jain, CPIO quoted Decision No. 883/IC(A)/2007 dated 14.06.2007 passed by the Hon'ble Central information Commission in Dr. K.C. Vijaykumaran Nair Vs. Department of Posts wherein it was held that the information seeker, being an employee of the respondent, is a part of the information provider. Under the RTI, the employees are not expected to question the decisions of the superior officers in the garb of seeking information. Such employees have access to internal mechanisms for redressal of their grievances, hence, the information sought cannot be provided.
CIC/POSTS/A/2017/130777 Page 1 Contentions:
3. The appellant stated that she is an employee at Head Post Office (IPHO) and disciplinary proceedings were initiated against her along with several other employees on charges of manipulating the quantity of articles under BNPL (Buy Now Pay Later) scheme. She wanted the copies of few documents mentioned in the charge sheet to prove himself innocent. The officers representing the respondents brought to the notice of the Commission about a scandal wherein several post office employees deliberately shown less weight than the actual weight of the article being posted under the BNPL scheme, as they had clandestine understanding with companies who have bulk despatches every day. This led to under-billing causing loss worth amounting to around a Crore of Rupees. The private companies are benefitted on the dishonesty of some of employees at the cost of Post Office. Several officers are facing the charge-sheets on this allegation, including the appellant. The appellant is seeking some of the documents which he thinks useful to prove his innocence. She wants attendance sheet of a particular day, BNPL booking registers for a specified period, mentioned in the charge- sheet, etc.
4. A charge-sheet is a formal document of accusation prepared by law-
enforcement agencies in India. It is distinct from the First Information Report (FIR) (which is the core document that describes a crime that has been committed), usually refers to one or more FIRs, and charges an individual or organization for (some or all of) the crimes specified in those FIRs. The charge-sheet is nothing but a final report of police officer under Section 173(2) of the Cr.P.C.
5. This report is intimation to the magistrate that upon investigation into a cognizable offence, the Investigation Officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. In fact, the report under Section 173(2), purports to be an opinion of the Investigating Officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the Court.
CIC/POSTS/A/2017/130777 Page 2
6. Under Section 173 CrPC the report of the police officer on completion of investigation (charge-sheet) has to be forwarded to a Magistrate empowered to take cognizance. Subsection (2)(ii)says that report has to be given to the person who first informed about the offence. Thus, it contains right to information to the informing person or complainant. Subsection 6 says even accused has right to get a copy of charge-sheet, unless the investigating police officer indicates to the Magistrate that some part of the statement any statement need not be given.
7. The charge-sheet might contain evidence and other documents which might be relevant for the prosecution but may not be relevant for third parties or general public. The charge-sheet thus is a public document, held by the public authority which is subject to Section 8 of the RTI Act. That means the charge-sheet may not be rejected or accepted in toto.
8. In domestic inquiries also, the charge-sheet is conclusion of preliminary inquiry and beginning of disciplinary proceedings. Once a stage of process is over and a report is made based on which further inquiry has to begin, it means the charge-sheet is the starting point of the inquiry and how can that be considered as 'impeding' the inquiry? It is the basis of inquiry and if the charge-sheet includes a mention or enclosure of certain documents or statements as basis for concluding the prima facie nature of allegations, the principles of justice demand that information should be shared with the accused. In this case different officers are facing inquiry for alleged scandal. If the inquiry is already in the process, they should have supplied with the papers which formed basis of charge-sheet. If not, they need to be supplied.
9. It has been held in the case of B. S. Mathur v/s Public Information Officer of Delhi High Court in W.P.(C) no. 295/2011 decided on 03.06.2011, the Hon'ble High Court of Delhi held that:
19. The question that arises for consideration has already been formulated in the Court's order dated 21st April 2011: Whether the disclosure of the information sought by the Petitioner to the extent not supplied to him yet would "impede the investigation" in terms of Section 8 (1) (h) RTI Act? The scheme of the RTI Act, its objects CIC/POSTS/A/2017/130777 Page 3 and reasons indicate that disclosure of information is the rule and non-disclosure the exception. A public authority which seeks to withhold information available with it has to show that the information sought is of the nature specified in Section 8 RTI Act.
As regards Section 8 (1) (h) RTI Act, which is the only provision invoked by the Respondent to deny the Petitioner the information sought by him, it will have to be shown by the public authority that the information sought "would impede the process of investigation." The mere reproducing of the wording of the statute would not be sufficient when recourse is had to Section 8 (1) (h) RTI Act. The burden is on the public authority to show in what manner the disclosure of such information would "impede‟ the investigation. Even if one went by the interpretation placed by this Court in W.P. (C) No.7930 of 2009 [Additional Commissioner of Police (Crime) v. CIC, decision dated 30th November 2009] that the word "impede" would "mean anything which would hamper and interfere with the procedure followed in the investigation and have the effect to hold back the progress of investigation", it has still to be demonstrated by the public authority that the information if disclosed would indeed "hamper" or "interfere" with the investigation, which in this case is the second enquiry.
10. Thus the CPIO has a duty to examine whether disclosure of those files impede the process of the inquiry/investigation or prosecution. If it is established that the disclosure has an effect of impeding the investigation or prosecution, then only the information sought is exempted from disclosure under Section 8(1)(h) of RTI Act. The PIO did not discharge this burden. He did not advance anything to show that disclosure of information sought would hamper the investigation process.
Employee's Right to Information
11. Instead of examining the impact of disclosure on process of inquiry against the appellant and other employees, the CPIO introduced a new excuses to deny information. the CPIO raised three excuses:
a) The employee is also holder or generator of information, hence he cannot seek such information CIC/POSTS/A/2017/130777 Page 4
b) The employee has no right to information, if they have grievances, they have to pursue that grievance but not use the RTI for that,
c) The employee cannot question the superiors on their decision making,
12. These three propositions are baseless. To say that employees are part of holders or generators of information and hence they do not have right to information etc is neither legal nor logical. This amounts to adding a new restriction which was not provided under RTI Act on the right of the employees. How can there be a general proposition that every employer is part of generating or holding or controlling the information and hence he cannot seek it under RTI Act? If the CPIO and public authority sincerely feel so why not they seek the information which they have generated, or are part of holding of that information? In such case there should be no problem in showing their-own generated information.
13. Every Government employee is a citizen first and RTI Act did not exempt the Government Employee from this right. There is no basis for concluding that employee of public authority has no right to information. Being a citizen, employee has equal right to information. As the RTI is part fundamental right guaranteed under Article 19(1)(a) of the Constitution, the RTI cannot be denied to the employee.
14. It is very clear from the provisions of RTI Act and judgments of Supreme Court and High Courts that information request can be rejected only under exceptions mentioned under Sections 8 and 9 of RTI Act. The contention of CPIO and the order cited by him are not based on any of the exceptions in those two sections.
15. The public authority cannot deny this right to information to the employee simply because he was part of public authority. It is also a misplaced proposition that a junior employee cannot question the decision of the senior employee or officer or employer quoting a CIC order in 883/1C(A)/2007 dated 14.06.2007 in Dr. K.C. Vijaykumaran Nair Vs. Department of Posts.
16. Two questions emanate from this contention of public authority based on above decision.
CIC/POSTS/A/2017/130777 Page 5
a) What is the basis of this proposition that an employee cannot question decision of his superior?
b) When an employee as asking for information about decision by his superior, does it mean that he is questioning the superior?
17. The decision of employer can be questioned by labour in labour court through Assistant Labour Commissioner. An employee of state government can challenge decision of employer/superior in State Administrative Tribunal. Similarly the employee of Central Government can question the decision before the CAT (Central Administration Tribunal). Every employee has freedom of speech and expression under the Constitution, on par with every citizen. Seeking information cannot be equated with the challenging the decision. If the decision of any authority is illegal or improper, everybody who is affected by it can challenge it in a letter, complaint, criticize it in association of employees or during the negotiations with officers. Especially when fundamental rights of a person are affected by the employer or superior officer, the employee can straight away challenge it before any High Court or the Supreme Court under Articles 32 and 226, which are fundamental rights.
18. The Supreme Court recognized the right of a subordinate officer to seek review of adverse remarks made by the senior in his Annual Confidential Reports. He can even challenge the decisions of employer like transfer or denial of seniority or promotion or unjustified punishment in disciplinary action etc. Hence the Commission rejects the contention of CPIO that public authority has authority to deny the RTI of its employee simply because he was an employee.
19. It is also necessary to analyse the contention of the CPIO based on the order of the CIC, cited above. The order of the CIC is binding on parties as per the Section 19(7) of the RTI Act, 2005 says: The decision of the Central Information Commission or State Information Commission, as the case may be, shall be binding. However parties can challenge the order of the Commission under writ jurisdiction of Constitutional Courts. In the absence of such a challenge, they have to comply with the directions of the CIC order. At the same time, the CPIO should know that such an order will not bind all parties for all times to come like precedent created by the Supreme Court or High Court. The order of the CIC/POSTS/A/2017/130777 Page 6 CIC or SIC in particular context is limited to that context only, and it can be cited or followed in similar contexts also. However each CIC or SIC is independent and free to evaluate the disclosability of the information sought based on RTI Act, Constitution of India and any other relevant law. If the previous order of CIC on similar context is not in accordance with RTI Act or Constitution or any other law including the judgment of Constitutiona Courts, it can be ignored. Generally the order of CIC will certainly have a persuasive value in similar cases if it is well reasoned, based on RTI Act, legally tenable and logically correct. Judicial discipline demands that the order by a larger Bench of the Information Commission shall bind the other Commissioners. But if such an order is against the law, especially the provisions of the RTI Act, the individual Commissioner is not bound by the same. Moreover, if the facts differ from the context in which such an order was passed, the Commissioner is at liberty to take a reasoned decision.
DECISION
20. The Commission finds that the public authority failed to prove that disclosure would harm the investigation. If the copies of sheets sought are important in establishing the charge or innocence of the charge- sheeted officers, the appellant-accused is entitled to have copy of the same, under principles of natural justice and also under rules of domestic inquiry. According to the officers, the appellant is entitled to the copy of documents relied on them to establish charges. Thus, what could be given to accused in domestic inquiry cannot be denied under the RTI Act. Once a request is filed, the PIO of the public authority has to decide whether it could be given or not under RTI Act, and PIO can neither reject or redirect it to a different forum or law for securing the information. If the public authority is worried about security of the records if offered for inspection or photocopying, they are entitled to take any measure to protect them but cannot deny the access to copies, certified to be so. Such an inspection could take place during the inquiry also.
21. It is the duty of every accused officer to participate in the inquiry proceedings and also in prosecution of the scandal of underweighting CIC/POSTS/A/2017/130777 Page 7 the parcel to illegally benefit bulk dispatching companies for a quid pro quo. It is a shame that several officers were facing inquiry in such a cheap scandal causing unlawful harm to the post office based on their wrongful gain. Besides departmental action, the scandal might necessitate the state to prosecute such officers irrespective of quantum of money, either less or more.
22. In this case the public authority should have given the documents sought if it does not attract any exception under Section 8, either during the inquiry or under the RTI Act. The Commission directs Mr. Rambabu Sharma, SSPO to facilitate inspection of the documents relied upon for framing charges, and provide certified copies of documents that are referred or annexed with the charge-sheet, within 30 days from date of receipt of this order. The respondent authority is directed to take all necessary precautions to safe-guard the files and the accused appellant is warned not to cause any harm to original files or papers. Disposed of.
SD/-
(M. Sridhar Acharyulu) Central Information Commissioner Authenticated true copy (Dinesh Kumar) Deputy Registrar Copy of decision given to the parties free of cost.
Addresses of the parties:
1. The CPIO under RTI, Department of Posts, New Delhi Central Division, New Delhi-110001.
2. Mrs. Manju, Postal Assistant, Indraprastha H.P.O., New Delhi-110002.
CIC/POSTS/A/2017/130777 Page 8