Central Information Commission
Mr.Avadhesh Prakash vs Ministry Of Defence on 25 April, 2011
CENTRAL INFORMATION COMMISSION
Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place,
New Delhi-110066
File No.CIC/LS/A/2010/001300
File No.CIC/LS/A/2010/000655
File No.CIC/LS/A/2010/001603
Appellant Lt. Genl.(Retd) Avadhesh Prakash
Public Authority Indian Army.
Date of hearing 16th March, 13th & 21st April, 2011
Date of decision 25th April, 2011.
Facts :-
The matter is heard on 16.3.2011. The appellant is present along with his Counsel Shri S.S. Pandey. The Army is represented by Shri A. Chandrashekhar, Director, DV II, MoD; Col A.K. Vyas; Ms Indulekha Haldar and Shri R.C. Jain.
2. The above cited three appeals have been filed by appellant Shri Avadhesh Prakash. They are being disposed of through a common order.
3. As a backgrounder, it may be mentioned that the Army authorities had conducted a Court of Inquiry in regard to matters relating to Chumta Tea Estate in Darjeeling District. After conclusion of the inquiry, a notice was issued to the appellant herein to show cause why "administrative action" by way of censure should not be initiated against him. The appellant had responded to the show cause notice . However, vide letter dated 29.1.2010, the Army authorities had communicated to the appellant that the show cause notice had been cancelled and that "disciplinary action" had been directed to be initiated against him by the "competent authority". It is in this context that the appellant had sought certain informations from the Army authorities. We now propose to deal with these cases one by one.
File No. CIC/LS/A/2010/001300 :-
4. Vide RTI application dated 16.2.2010, the appellant had sought the following information :-
"(a) The file and all relevant noting sheets on which the recommendations on the Court of Inquiry with respect to Chumta 1 Tea Estate were examined by the relevant branch/directorate in Army HQ. This may please include remarks of the relevant ADG, PSO and the COAS.
(b) I would also like to inspect the file/files concerned with the said case. At that stage I will take photocopies of documents and notings in the file as required. Please intimate the date and time for the inspection of the files."
5. Through letter dated 15.03.2010, the CPIO had communicated the response dated 10.3.2010 of AG/DV-1 (P) which is extracted below :-
"The notings and remarks fall in the category of communication made in fiduciary relationship and are protected under section 8(1)(e) of the RTI Act, 2005.
Request for inspection of files shall also have to be denied on the same ground i.e. Under section 8(1)(e) of the RTI Act 2005."
6. On appeal, the Appellate Authority had upheld the decision of CPIO vide letter dated 14.06.2010.
File No. CIC/LS/A/2011/000655 :-
7. Vide RTI application dated 16.02.2010, the appellant had sought the following information :-
"(a) The findings and opinion of the court of inquiry report with respect to Chumta Tea Estate based on which the above letters were issued.
(b) The remarks of Army Commander Eastern Command and all senior officers at Army HQ who endorsed the case file.
(c) I would also like to inspect the file/files concerned with the said case. At that stage I will take photocopies of documents and notings in the file as required. Please intimate the date and time for the inspection of the files."
8. Through letter dated 15.03.2010, the CPIO had communicated information dated 10.03.2010 received from AG/DV-1(P) which is extracted below :-
"The complainant shall be entitled only to a copy of such statements and documents which have bearing on his character and military reputation or are relevant to his prosecution or defence during a subsequent trial. The said Rule does not specify the findings and opinion of the C of I. Hence taking the spirit of AR 184 into 2 consideration, the complainant shall not be entitled to the findings and opinion of the C of I. The remarks of the Cdrs in chain who endorsed the case file, fall within the category of notings and communications made in fiduciary relationship hence would be exempt from disclosure under Section 8(1)(e) of the RTI Act, 2005.
Similarly, the complainant shall be denied inspection of the file and other notings under Section 8(1)(e) of the RTI Act, 2005."
9. The first appeal filed by the appellant was dismissed by the AA vide order dated 08.06.2010 in terms of clauses (e) & (h) of the RTI Act.
File No. CIC/LS/A/2010/001603 :-
10. Vide RTI application dated 16.2.2010, the appellant had sought the following information :-
"(a) The letter in which directions were received from the Ministry of Defence with respect to change from initiation of disciplinary action as against administrative action for the undersigned, intimated by the COAS in the show cause notice mentioned above.
(b) I would also like to inspect the file/files concerned with the said case. At that stage I will take photocopies of documents and notings in the file as required. Please intimate the date and time for the inspection of the files."
11. Through letter dated 13.3.2010, the CPIO had communicated response dated 9.3.2010 of AG/DV-1(P) which is extracted below :-
"The information sought by the applicant is exempted under the provisions of section 8(1)(e) of the RTI Act, 2005 hence, can not be made available to the applicant.
His request for inspection of file and notings can also not be allowed as the same is protected under section 8(1)(e) of RTI Act, 2005."
12. The appellant had filed first appeal against the decision of the CPIO which was disposed of by the first Appellate authority vide order dated 14.08.2010 wherein he had held that the requested information was exempted from disclosure under clauses (e) & (h) of section 8(1) of the RTI Act.
313. During the hearing, Adv. S.S. Pande assails the position taken by the CPIO & AA on the ground that show cause notice was issued to the appellant only after the conclusion of the inquiry and, therefore, clause (h) of section 8(1) is not attracted. Further, the summary of evidence against the appellant has been concluded and for this reason also, the requested information is not barred from disclosure. Elaborating on it, Adv. Pandey submits that the word "investigation" as occurring in clause (h) signifies recording of evidence of witnesses etc. and this process has already been completed and, therefore, the matter in hand cannot be said to be under investigation. Adv. Pandey also relies on Rule 23 & 24 of the Army Rules, 1954. It is his submission that the summary of evidence against the appellant has been concluded and it is now for the Commanding Officer to determine asto how the charged officer is to be further proceeded with.
14. He also adverts to Rule 184(2) of the Army Rules according to which any information which affects the character or military reputation of an Army officer is generally disclosable unless the COAS orders otherwise for reasons to be recorded in writing. He wants to know whether the information has been denied by the CPIO at his own level or clearance was sought from COAS. He also assails non-supply of the MoD letter on the ground that it is simply a part of the official records and no privilege can be claimed for it.
15. On the other hand, Shri A. Chandrashekhar, Director, DV-II, MoD submits that it is incorrect to say that investigation, as defined in section 8(1)(h) of the RTI Act, has been concluded in as much as only the Court of Inquiry has been concluded and the stage is now set for the disciplinary authority to determine whether or not the trial should commence. Hence, the matter squarely falls in the ambit of clause(h). He further submits that even if it is held that the investigation has been concluded, clause (h) also covers prosecution of an offence. So both ways, the matter still falls in the ambit of clause (h). He also relies on Rule 28 of the Army Rules, 1954, according to which the real investigation would commence only when the court martial proceedings are initiated. That stage has yet to come. He further seeks support from Rule 182 of the Army Rules which lays down that the evidence that surfaces in the CoI is not admissible in the subsequent proceedings. This, according to him, further proves the point that the investigation is yet to commence rather than having been concluded, as argued on behalf of the appellant. Thus, his over all submission is that the requested information is not disclosable to the appellant.
416. The hearing remained inconclusive. The parties were directed to submit their written representations in 10 days time and the matter was adjourned.
17. The parties have sent written representations which are taken on record. Paras 03 to 06 of the representation filed by the appellant capture the background of the matter and the core issues involved therein which are extracted below :-
"3. The appellant is retired from the Indian Army. Before his retirement, Court of Inquiry (herein after referred to as "Col") was ordered by HQ, Eastern Command, Kolkata vide a letter No 305971/CTE/Q3 (Land) (PC) dated 30.9.2010. The name of the appellant appeared in the CoI for the first time after lapse of after approx. 20 days on 7.11.2009 and the Appellant appeared before the CoI as a witness on 17.11.2009;
4. Based on findings and opinion of the CoI, a Show Cause Notice ("SCN") was issued to the Appellant by the Chief of Army Staff, on 11.1.2010 vide ADG, Discipline and Vigilance (DV-4), Adjutant General Branch, Integrated HQ of Ministry of Defence (Army) letter No B/29185/601/AG/DV-4(A), asking the appellant why suitable administrative action should not be taken against the appellant by award of appropriate censure. It is to be noted that the Chief of Army Staff, being the sole Competent Disciplinary Authority, after due application of mind had issued SCN only for administrative action. A copy of the SCN dated 11.1.2010 is annexed hereto and marked as Annexure A-1;
5. The appellant replied to the SCN on 22.1.2010 vide letter No. 24611/AP/Notice. A copy of the reply to the SCM dated 11.1.2010 is annexed hereto and marked as Annexure A-2;
6. ON 29.1.2010, the appellant was issued a letter No C/06280/EC/411/AG/DV-2 issued by Adjutant General Branch, Integrated HQ of Ministry of Defence (Army), invoking Section 123 of the Army Act, 1950 (herein after the "Army Act") against the Appellant. This letter also mentions the aforesaid SCN issued dated 11.1.2010 was cancelled as disciplinary action had been directed to be initiated by the Competent Authority instead of Administrative action as contemplated under the letter dated 11.1.2010. Strangely, the disciplinary action was based on the mandate of the Ministry of Defence. A copy of letter No C/06280/EC/411/AG/DV-2 issued by Adjutant General Branch, Integrated HQ of Ministry of Defence (Army), dated 29.1.2010 is annexed hereto and marked as Annexure A-3."
18. As regards File No CIC/LS/A/2010/001603 regarding the disclosure of communication received from the MoD, the appellant has relied on Army Rule 184 which is extracted below :-
5"184. Right of certain persons to copies of statement and documents :-
(1) Any person subject to the Act who is tried by a Court Martial shall be entitled to copies of such statements and documents contained in the proceedings of a Court of Inquiry, as are relevant to his prosecution or defence at his trial.
(2) Any person subject to the Act whose character or Military reputation is affected by the evidence before a Court of Inquiry shall be entitled to copies of such statements and documents as having a bearing on his character or military reputation as aforesaid unless the Chief of the Army Staff for reasons recorded by him in writing, orders otherwise."
19. The appellant has also assailed the decision of the public authority in regard to denial of information u/s 8 (1) (h) of the RTI Act. In this context, it may be apt to extract para 29 of his representation :-
"29. That on the aspect of the resorting to Section 8 (1) (h) of the RTI Act by the Respondent No 2 being the First Appellate Authority for denying the information to the Appellant, in as much as per the Appellate Authority, in the impugned Order it is observed that the Appellant is also not entitled to the information as sought for as the case is under investigation and, thus, in terms of Section 8 (1)(h), the Appellant is not entitled to the information. It is submitted that the stand of the Respondents that trial is an investigation is highly misleading. It is a matter of common sense and known to all that trial either under Cr.P.C. or under any other law is the outcome of the investigation and unless investigation is complete, no trial can commence. The trial by Court Martial is similar to a criminal trial where after the investigation is over and the police files the charge- sheet, the Magistrate may proceed to frame the charges if the evidence brought on record so requires. Similarly, under the scheme of Army Act, it is the Commanding Officer and the Convening Authority who complete this process of investigation by way of Court of Inquiry and recording of Summary of Evidence. It is submitted that both CoI as well as recording of summary of evidence is complete with respect to the Appellant."
20. Shri A. Chandrashekhar, Director, DV-II has filed a representation on behalf of the MoD in support of his oral submissions. It may be apt to extract paras 07, 08, 10, 11, 12, 14, & 17 of his representation :-
7. Comments Sec 8 (1) of RTI exempts disclosure of information not only on the grounds of impeding 'investigation' but also 'prosecution'. The prosecution of the applicant is yet to begin. Since 6 the disclosure of any of the information sought by the applicant would seriously impede the process of prosecution, the case squarely falls under the exemption clause Sec 8 (1) (h) of RTI Act and the appeal against the order of the Appellant Authority deserves to be rejected on this ground alone.
8. As per the scheme of things, the trial, if so ordered by the Competent Authority is based on the appreciation of evidence collected during the process of Hearing of Charges and Summary of Evidence in terms of Army Rules 22 and 23. Formal trial will start only after a Charge Sheet is duly served on the accused in terms of AR 28, which stage has not yet been reached in respect of the applicant.
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10. Comments Army Act Sec 184 (2) mandates provisioning of copies of such statements and docus as have a bearing on his character and military reputation and the accused is not entitled to get the findings and opinion. Since the applicant has already been provided with copies of statements and documents, the requirement of Army Act Sec 184 (2) stands fully complied with.
11. It is further submitted that the Hon'ble Supreme Court in Maj gen Inderjit Kumar Vs Union of India and Ors (1997) 9 SCC page has clearly held that the findings and opinion of the Court of Inquiry are not to be given to the accused. Applying the ratio of this judgement, the Hon'ble Armed Forces Tribunal (Principal Bench), New Delhi in a very recent case, OA 547/2010, Brig KP Chand Vs Union of India and others vide its judgement dated 01 Feb 11 has reiterated the point that copy of the opinion and findings of a Court of Inquiry is not required to be given to the accused. Paras 5 and 7 of the judgement are relevant. Copy of the AFT (PB) order dated 01 Feb 11 is enclosed as Annexure (A-1)
12. The contention of the applicant that he is entitled to have copy of findings and opinion of the C of I under RTI Act because of its overriding effect also is totally incorrect since the information being sought clearly attracts Sec 8 (1) (h) of RTI Act and hence qualifies for exemption. As already mentioned, the prosecution of the applicant is yet to begin and that of another officer involved in the case is yet to be finalized. Disclosure of information sought by the applicant at this stage would seriously impede progress of prosecution in both these cases.
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14. Comments It is submitted that the said letter of MoD is held in this HQ in a fiduciary capacity and hence attracts exemption under 8 (1)
(e) and the applicant has no case against the orders of the Appellate Authority in this regard. Further, the letter of MoD in question can not be seen in isolation. It is respectfully submitted that provision of 7 copy of letter would severely impede prosecution of the applicant as well as that of the accused and hence attracts Sec 8 (1) (h) also.
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17. Top sum up, the process of prosecution of the applicant is yet to begin and hence disclosure of any of the information sought for would seriously impede the 'prosecution'. IN view of the above, it is respectfully submitted that the info sought in all the three applications of the applicant attracts exemption clauses 8 (1) (e) and 8 (1) (h) as brought out above, and the applicants claim to the contrary are totally baseless and hence the applications of 2nd appeal against the orders of the AA deserve to be rejected. It is accordingly prayed."
21. As scheduled, the matter is called for hearing today dated 13.4.2011. The appellant is present along with his counsel Shri S.S. Pandey. The Army is represented by Brig A.K. Tyagi, Col A.K. Vyas & Shri A. Chandrashekhar, Director. The parties are heard. As regards File No CIC/LS/A/2010/001603 regarding the supply of the MoD letter addressed to the COAS, Shri A Chandershekhar objects to the disclosure of this letter and submits that it would be expedient to hear the originator of the said letter, that is, MoD, before deciding the matter. In the circumstances, it is deemed expedient to give an opportunity of hearing to the MoD. Hence, notice is issued to Shri Arun Kumar Bal, Joint Secretary (E), MoD, for appearance before the Commission on 21.4.2011 at 1500 hrs.
22. As scheduled, the hearing is resumed today dated 21.04.2011 at 1500 hrs. The appellant is present along with his counsel Shri S.S. Pandey. MoD is represented by Shri Arun Kumar Bal, Joint Secretary(Estt.). The Army is represented by Brig. A.K. Tyagi, Col. A.K. Vyas and Shri Chandrashekhar, Director(DV.II). The parties are heard. Shri Chandrashekhar submits another representation which is taken on record and a copy thereof furnished to the appellant. He draws the Commission's attention to para 07 of his representation which depicts the present position of the disciplinary proceedings against the appellant. Para 07 is reproduced here-below :-
"7. Presently, the investigation process in the form of Recording Summary of Evidence in terms of army Rule 24 has been completed and based on this evidence that has emerged, the Competent Authority has directed trial of the applicant by GCM. In this connection it is mentioned that the information the applicant is seeking viz File noting of various 8 functionaries who have dealt with the case resulting in discp action as also opinion and findings of the C of I are the vital inputs based on which a prima facie case was established. After this the court Martial proceedings are conducted based on the evidence collected during Summary of Evidence. However, at the time of confirmation the Confirming Authority will juxtapose the findings of the C of I with that of GCM to arrive at a decision as to confirm the proceeding or not. Disclosure of such information to either prosecution or defence at this stage would seriously jeopardize the objectivity and neutrality of the Court. Further disclosure of such information as to which authority had held what opinion on the case at this crucial stage would amount to laying open the line of prosecution arguments and the material evidence, and witnesses considered vital by the prosecution to prove the culpability of the accused in the case and will lead to a situation that will help the applicant to cover up his trial as also to doctor the material evidence and adversely influence the prosecution witnesses and this will severely impede the course of the Court Martial and adversely affect the dispensation of justice. It is reiterated that since even the Court Martial is not privy to the info sought by the applicant the disclosure of the info would certainly jeopardize the neutrality of the Court Martial and thus impede prosecution and the case squarely falls under the ambit of Sec 8(1)(h). Hence the info was rightly denied to the applicant under 8(1)(h) in addition to 8(1)(e)."
23. Shri Chandrashekhar also draws our attention to para 26 of his representation which is extracted herebelow in extenso.
"Para 26: It is submitted that the applicant who held very senior positions in Army and who in that position himself would have ordered many GCMs cannot plead ignorance of the existing scheme of disciplinary proceedings in the Army as enunciated in various provisions of Army Act and Army Rules. The trial by GCM is a totally independent exercise, and as per AR 62, the GCM has to give a reasoned finding based only on the evidence that are led during the GCM. Based on Summary of Evidence the confirming Authority has already ordered trial of the petitioner by GCM. The information the applicant is seeking viz File noting of various functionaries who have dealt with the case resulting in discp action as also opinion and findings of the C of I are the vital inputs based on which a prima facie case was established. After this the Court Martial proceedings are conducted based on the evidence collected during Summary of Evidence. However, at the time of confirmation the confirming authority will juxtapose the findings of the C of I with that of GCM to arrive at a decision as to confirm the proceeding or not. Disclosure of such information to either prosecution or defence at this stage would seriously jeopardize the objectivity and neutrality of the court. Further disclosure of such information as to which authority had held what opinion on the case at this crucial stage would amount to laying open the line of prosecution arguments and the material evidence, and witnesses considered vital by the prosecution to prove the culpability of the accused in the case and will lead to a situation that will help the applicant to cover up his trail as also to doctor the material evidence and adversely influence the prosecution witnesses 9 and this will severely impede the course of the Court Martial and adversely affect the dispensation of justice. It is reiterated that since even the Court Martial is not privy to the info sought by the applicant the disclosure of the info would certainly jeopardize the neutrality of the Court Martial and thus impede prosecution and the case squarely falls under the ambit of Sec 8 (1) (h). hence any disclosure as sought by the applicant would have the effect of seriously prejudicing the judgment of the GCM and thus would impede the progress and outcome of the GCM and thus is exempted under RTI Act Sec 8 (1)
(h)."
24. In view of the foregoing discussion, the following issues need to be determined :-
(i) whether the findings of the CoI and the recommendations of the superior authorities are disclosable to the appellant;
(ii) whether the aforesaid information is disclosable to the appellant in terms of Rule 184 of the Army Rules, 1954, particularly when ongoing proceedings affect the character or military reputation of the appellant; and
(iii) whether the letter dated 27.01.2010 of MoD addressed to the COAS is disclosable to the appellant.
25. I will now take up the issues one by one.
Issue Nos. (i) & (ii) :
As these issues are interrelated, I will discuss them together. As regards these issues, Shri Chandrashekhar repeats the submission made in para 07 of his representation extracted above as per which the recording of summary of evidence in terms of Army Rule 24 has been concluded and the competent authority has directed trial of the appellant by GCM. According to him, right from the initiation of CoI proceedings up to the confirmation by the competent authority, the whole process is continnum and falls in the ambit of investigation or prosecution as occurring in section 8(1)(h) of the RTI Act. According to Shri Chandrashekhar, the proceedings are at the stage of prosecution as per Army law and, therefore, the requested information is not disclosable. When queried by the Commission as to how disclosure of the requested information is going to impede the process of 'prosecution', Shri Chandrashekhar submits that disclosure of requested material would affect the neutrality of the scheduled GCM proceedings and would prejudice the prosecution case in as 10 much as the case of prosecution would be known to the appellant before hand. Shri Chandrashekhar also draws the Commission's attention to decision dated 19.10.2009 of this very Bench in File No.CIC/SM/A/2009/000448/LS(Lt. Col. S.M. Bhattacharya -Vs- Indian Army) wherein the pre-confirmation proceedings were held to be covered under clause (h) of section 8(1). Para-06 of the decision is extracted below :-
"6. As mentioned herein above, the GCM proceedings in respect of appellant are yet to be confirmed by the competent authority and the same are yet to be completed in respect of another Medical officer who is facing similar charges. In this view of the matter, the matter in hand can be said to be under investigation in terms of clause (h) of section 8(1). In this view of the matter, the plea of the public authority regarding non-disclosure of any further material appears to be sustainable in law and is upheld. However, the CPIO is hereby directed to disclose the requisite information as and when the GCM proceedings have been confirmed/completed."
26. On the other hand, the appellant forcefully pleads that the findings of the CoI and the recommendations/observations of the superior authorities are required to be supplied to him in terms of Rule 184. In this connection, he has relied on this Commission's decision dated 10.01.2008 in File No. CIC/WB/A/2007/01212 (Lt. Col. Harish Gulati -Vs- MoD) wherein the Commission had observed as follows :-
"Insofar as Rule 184 of the Army Rules, 1954 is concerned, it appears that the rule rather than prohibiting entitles a person to get copies of such statements and documents contained in the proceeding of Court of Inquiry as are relevant to his prosecution or defence at his trial. A person is also entitled to have copies of such statements and documents having a bearing on his character or military reputation. The denial of information is justified only when orders regarding such denial are passed by the Chief of the Army Staff for reasons recorded by him in writing. It will be pertinent to refer to Rule 184 of the said Army Rules".
27. It is his plea that the scheduled proceedings definitely affect his military character or reputation and, therefore, he is entitled to the information under section 184 which has been denied to him hitherto- fore. He repudiates the submissions of Shri Chandrashekhar that all documents have already been supplied to him on the footing that without findings of CoI and the comments/observations of senior officers, bland statements of witnesses are not of much value to him.
28. The appellant also draws the Commission's attention to the order dated 03.12.2009 of Armed Forces Tribunal in case of Maj.
11Genl. (Retd.) Anil Swarup -Vs- Union of India wherein the AFT had ordered supply of copies of CoI proceedings even when the recording of summary of evidence was in progress. It is his plea that the stand taken by Shri Chandrashekhar is totally contradictory to the view taken by AFT.
29. The appellant has also relied on the Delhi High Court judgment dated 30th November, 2009 in Union of India -Vs- CIC wherein it has been emphasized that to justify denial of information, impediment to the process of investigation/prosecution must be 'actual and not make belief'.
30. Adv. Pandey would argue that even if the matter is held to be under prosecution in terms of Army law, to contend this on the part of the Army authorities would not be sufficient to deny the requested information. According to him, information can be denied under clause (h) only when such disclosure impedes the process of investigation or prosecution. He counters the plea taken by Shri Chandrashekhar that the disclosure of the requested information is going to impede the process of investigation or prosecution. It is his plea that if it were the case, the Army authorities would not have supplied him copies of statements etc. which they have already done. He strongly protests against the suggestion of Shri Chandrashekhar that disclosure of requested information would prejudice the prosecution case. In fact, it is his plea that the disclosure of requested information would enable the concerned Army authorities to decide the matter in a more fair and objective manner thereby serving the interest of justice and fair play. Adv. Pandey also submits that the CIC decision referred to above and relied upon by the Army authorities is of no consequance in as much as the appellant had not appeared before the Commission to convass his case and the ex-parte order passed by the Commission did not take into consideration the finer nuances of the Army law.
31. As a rejoinder, Shri Chandrashekhar draws the Commission's attention to order dated 01.02.2011 of the AFT in Brig. K.P. Chand - Vs- Union of India wherein the disciplinary proceedings were challenged, inter-alia, on the ground that the findings of the CoI had not been supplied to the delinquent officer and the AFT had rejected the appellant's contention.
Issue No.(iii) :-
32. As noted above, Shri Bal, Joint Secretary, MoD, appeared before the Commission and stated that the MoD had nothing to say in 12 the matter. Shri Chandrashekhar, however, strongly pleads that the MoD's letter cannot be disclosed as the MoD had written this letter to COAS and the latter is holding it in a fiduciary capacity. Hence, this letter is protected from disclosure under clause (e) of section 8(1).
33. On the other hand, Adv. Pandey submits that it is a routine communication sent by MoD to the COAS and denial of this letter to the appellant under clause (e) is not sustainable in law. He pleads that it is unimaginable that the COAS becomes the fiduciary of the MoD in a matter like this which is nothing but normal official correspondence. Shri Chandrashekhar rebuts this suggestion and submits that it is not a routine letter. Nor has it been sent by MoD to COAS in a routine manner. It is a letter containing information on a very sensitive issue and has a bearing on the credibility of the Army as an institution.
DECISION & REASONS
34. We have given a serious thought to the matter and also carefully perused the material on record. The main controversy herein is whether the disclosure of requested information would impede the process of investigation or prosecution. The relevant portion of section 8(1)(h) is reproduced below :-
"8 - Exemption from disclosure of information - (1) Notwithstanding anything contained in this act, there shall be no obligation to give any citizen -
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(h) Information which would impede the process of investigation or apprehension or prosecution of offenders;"
For denial of information, two conditions need to be satisfied : - (i) the matter should be under investigation or prosecution, and (ii) disclosure of information should be such as to impede the process of investigation or prosecution.
35. In para 26 of the representation extracted above, Shri Chandrashekhar has stated that based on summary of evidence, the confirming authority has already ordered trial of the petitioner by GCM. He has also stated that disclosure of the opinion and findings of CoI are likely to impede the process of prosecution. He has given detailed reasons in the above mentioned para which need not be repeated. On the other hand, the appellant's case is that CoI has been concluded and 13 statements of witnesses have already been supplied to him but the opinion and findings of the CoI have not been provided. In other words, while the appellant is looking at the CoI proceedings on 'stand alone' basis, Shri Chandrashekhar, on the other hand, is looking at the entire disciplinary proceedings as a continnum, beginning with CoI proceedings and terminating with confirmation proceedings. In the facts and circumstances of the case, we are inclined to agree with Shri Chandrashekhar that the matter may be deemed to be under prosecution and disclosure of requested information at this stage would impede the process of prosecution. Viewed thus, the matter, in hand, is covered under clause(h) of section 8(1). Hence, we find no infirmity in the decisions of CPIO & AA in denying requested information in File Nos. 001300 & 000655 in this regard.
36. There is yet another related issue which needs to be addressed at this stage. Adv. Pandey has pleaded that any information which affects the character or military reputation of an Army officer is generally disclosable under section 184 of the Army Rules unless the COAS has ordered otherwise for reasons to be recorded in writing. He, therefore, wishes to know whether the COAS has passed any orders in this behalf and if not, then why this information has been denied to the appellant.
37. Suffice it to say that this case is being decided under the provisions of RTI Act which have over-riding effect over any other provision of law under section 22 of the RTI Act. As we have already held that the matter falls under the bar of clause(h) of section 8(1), Army Rule 184 is overshadowed and rendered inconsequential.
Issue No. (iii) :-
38. The controversy is whether MoD letter to COAS under reference is barred from disclosure under clause (e) of section 8(1). Clause (e) is extracted below :-
"(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;"
39. In this context, we may quote the following observations from the Full Bench decision dated 23.04.2007 of this 14 Commission in Rakesh Kumar Singh & Ors -Vs- Harish Chander, Assistant Director & Ors. (File No. MANU/CI/0246/2007) :-
"31. The word "fiduciary" is derived from the Latin fiducia meaning "trust, a person (including a juristic person such as Government, University or Bank) who has the power and obligation to act for another under circumstances which require total trust, good faith and honesty. The most common example of such a relationship is the trustee of a trust, but fiduciaries can include business advisers, attorneys, guardians, administrators, directors of a company public servants in relation to a Government and senior managers of a firm/company etc. The fiduciary relationship can also be one of moral or personal responsibility due to the superior knowledge and training of the fiduciary as compared to the one whose affairs the fiduciary is handling. In short, it is a relationship wherein one person places complete confidence in another in regard to a particular transaction or one's general affairs of business. The Black's Law Dictionary also describes a fiduciary relationship as "one founded on trust or confidence reposed by one person in the integrity and fidelity of another. The meaning of the fiduciary relationship may, therefore, include the relationship between the authority conducting the examination and the examiner who are acting as its appointees for the purpose of evaluating the answer sheets. "
40. We may also extract para 13 of the order dated 30.11.2009 of the Delhi High Court passed in Writ Petition(Civil) No. 8396/2009 & Ors. (Union of India -Vs- Central Information Commission) :-
"The relationship of a public servant with the Government can be fiduciary in respect of a particular transaction or an act when the law requires that the public servant must act with utmost good faith for the benefit of the Government and confidence is reposed in the integrity of the public servant, who should act in a manner that he shall not profit or take advantage from the said act. However, there should be a clear and specific finding in this regard. Normal, routine or rather many acts, transactions and duties of a public servant cannot be categorized as fiduciary for the purpose of Section 8(1)(e) of the RTI Act and information available relating to fiduciary relationship. (The said reasoning may not be applicable to service law jurisprudence, with which we are not concerned)."
41. A bare reading of the above passage would indicate that normal or routine acts and transactions and duties of public servants cannot be categorised as fiduciary for the purposes of section 8(1)(e). MoD appears to have written the letter to COAS for visiting the appellant with disciplinary proceedings graver than the ones recommended by the COAS. This appears to be a routine correspondence. There is nothing special about 15 it. We have perused the said letter and find nothing therein, disclosure whereof, is likely to impede the process of investigation/prosecution. In the premises, we find it difficult to uphold the contention of Shri Chandrashekhar that the Army authorities are holding the MoD letter in a fiduciary capacity. If his contention were to be accepted, then the entire correspondence exchanged between various offices/departments of the Government will become privileged thereby nullifying the beneficial effect of RTI Act.
42. In short, disclosure of the letter under reference is not barred under clause (e) of section 8(1). The order of CPIO & AA is set aside to this limited extent and it is ordered that a copy of the letter may be supplied to the appellant in 03 weeks time, free of cost.
Order reserved and pronounced on 25th April, 2011.
Sd/-
(M.L. Sharma) Central Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Aakash Deep Chakravarti) Additional Registrar Address of parties :-
1. The CPIO, RTI Cell, ADG AE, G-6, D-I Wing, Sena Bhawan, Gate No.4, IHQ of MoD(Army), New Delhi-110011.
2. Shri Avdhesh Prakash, H. No. 519, Sec.23, Gurgaon-122017.16