Central Information Commission
Kuldeep Jain vs Military Engineer Services on 12 March, 2021
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सुचना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मुिनरका, नई द ली - 110067
Munirka, New Delhi-110067
File No.: - CIC/MESER/A/2019/637773
In the matter of:
Kuldeep Jain
... Appellant
VS
Central Public Information Officer,
HQ Chief Engineer,
Southern Command
Pune - 411001
...Respondent
RTI application filed on : 16/10/2018 CPIO replied on : 29/10/2018, 02/02/2019 First appeal filed on : 22/02/2019 First Appellate Authority order : 14/03/2019 Second Appeal Filed on : 22/03/2019 Date of Hearing : 11/03/2021 Date of Decision : 11/03/2021 The following were present:
Appellant: Heard over phone alongwith Adv. Mihir Rajesh, his representative Respondent: Shri Akhilesh Shukla, Director & CPIO, heard over phone Information Sought:
The appellant has sought the following information with regard to downgrading the class of the firm, namely M/s. Turtle Infra (TI), Pune from C- 157 to D-615 :
1. Copy of Standardised code for registration, demotion, removal, suspension of business and banning business etc. of building contractors agreed-to by the 1 Ministry of Defence and contained in E-n-C's letter No. 36461/P-1/E8 dated 24/11/1976.
2. Provide copies of all the noting sheets and decisions taken with regard to putting ban on issue of tenders to TI and thereafter downgrading TI from Class C to class D.
3. Provide the copies of all letters received from Chief Engineer, Navy, Kochi and Chief Engineer, Pune zone with regard to placing ban on issue of tender, removal of ban and downgrading one class below in respect of TI.
4. And other related information.
Grounds for Second Appeal The CPIO has not provided the desired information.
Submissions made by Appellant and Respondent during Hearing:
The representative of the appellant submitted that he is not satisfied with the reply of the CPIO as mere pendency of a suit in the Court of Law could not be the sole ground for denying disclosure of information, particularly when the CPIO and the FAA both have failed to justify or substantiate their stand on non- disclosure and also the fact is that the matter before the Court and the information sought in the RTI applications are different. He further submitted that that since the firm has been already removed, the information related to its removal can now be provided as it directly affects him. With regard to point no.1 he stated that the information is not available on their website The CPIO reiterated the contents of his written submissions dated 05.03.2021.
Observations:
From a perusal of the relevant case records and the written submissions of the CPIO, it is noted that by virtue of the letter dated 14.03.2019, the FAA had denied the information while stating that since M/s Turtle Infra has filed a writ petition bearing No. WP 13390/2018 at Bombay High Court, the information cannot be provided as the matter is sub-judice. This reply of the CPIO was grossly improper as the CPIO had failed to refer to any specific exemption clause enumerated u/s 8 of the RTI Act. Under the provisions of Section 19 (5) of the RTI Act, 2005, in an appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO. The CPIO in his reply had clearly 2 failed to justify his position as to how the disclosure of information would be in contravention of any of the provisions enshrined under Section 8 of the RTI Act, 2005 and what is the matter which is sub-judice. In this context, the Commission refers to the decision of the Hon'ble High Court of Delhi in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP (C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:
"6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden.
The CPIO has filed detailed written submissions dated 05.03.2021, and while giving the background of the case has stated that the appellant is the proprietor of the firm M/s Turtle Infra. The firm is enlisted as a class C contractor with Chief Engineer Southern Command. It was noticed that the firm had fraudulently claimed payment of works not executed on ground and had also claimed advance payments for materials by submitting fake purchase vouchers. A preliminary investigation was carried out and the appellant along with some other departmental officials were found prima facie guilty. Therefore show cause notice was issued to M/s Turtle Infra and after affording reasonable opportunity, the firm was found guilty and was downgraded to class D. Simultaneously, disciplinary proceedings against the concerned officials was also initiated which is under way and a Staff Court of Inquiry has been ordered to investigate the lapses of the officials vide the letter dated 01.04.2020. He had also informed that the appellant had filed a WP bearing no. 13390/2018 in Bombay High Court challenging the action taken against the firm. In order to supplement his case, the appellant had sought certain information though the RTI application. On the orders of the Hon'ble Bombay High Court the case was adjudicated afresh and speaking orders for removal of the firm from the approved list of contractors was taken. He submitted that information cannot be provided as the same is exempted u/s 8(1)(h) & (j) of the RTI Act. The CPIO also informed that the issue in the RTI application and the matter before the High Court of Bombay is the same and inter connected as the appellant has challenged the order of removal of his firm from the list of contractors and therefore, the information cannot be supplied. The Commission finds the submissions now given are self-contained and the 3 applicability of Section 8(1)(h) of the RTI Act seems to be justified. The issues raised by the appellant in his second appeal memo have also been replied to in a point-wise manner in the recent submissions. Therefore, no further relief can be given in this matter. The CPIO is therefore directed to send a copy of these submissions to the appellant if not already given.
With regard to point no. 1, the desired information should be provided in the form of hard copy as the appellant has indicated that this is not available on t he website as informed by the respondents.
Decision:
In view of the above, the CPIO is directed to provide a revised reply to point no.1 of the RTI application alongwith a copy of the written submissions of the CPIO dated 05.03.2021 within a period of 03 days from the date of receipt of this order under intimation to the Commission.
The appeal is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मा णत स या पत ित) A.K. Assija (ऐ.के. असीजा) Dy. Registrar (उप-पंजीयक) 011- 26182594 / दनांक / Date 4