Central Information Commission
Ss Upadhyay vs Chief Commissioner Of Customs, ... on 5 June, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/CCUM3/A/2022/655590 +
CIC/CCUM3/A/2022/658442
SS UPADHYAY ......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Office of the Commissioner of Customs
(General), RTI Cell, Air Cargo Complex,
Sahar, Andheri East, Mumbai-400099,
Maharashtra. .... ितवादीगण /Respondent
Date of Hearing : 01/06/2023
Date of Decision : 01/06/2023
INFORMATION COMMISSIONER : Saroj Punhani
Note - The above-mentioned Appeals have been clubbed together for decision
as these are based on similar RTI Applications.
Relevant facts emerging from appeal (s):
RTI applications filed on : 21/05/2022
CPIO replied on : 27/05/2022
First appeals filed on : 16/06/2022
First Appellate Authority orders : 14/07/2022
Second Appeal dated : 16/10/2022
1
CIC/CCUM3/A/2022/655590
Information sought:
The Appellant filed an RTI application dated 21.05.2022 seeking the following information:
"File No. S/5-45/2019 - 20/ACC Vig Zone III is available in vigilance section under the jurisdiction of Commissioner (General), Air Cargo complex , Sahar , Andheri East , Mumbai 400099.
Please provide me certified copies of all the note sheets, of this file, written and/or signed on 8 December, 9 December and 10 December 2020."
CIC/CCUM3/A/2022/658442 The Appellant filed an RTI application dated 21.05.2022 seeking the following information:
"The information sought is available in Vigilance Section under the jurisdiction of Commissioner (General) , Air Cargo Complex, Sahar , Andheri East, Mumbai 400099.
The letter no. RC/BA1/2019/A0008/Mum dated 27/11/2020 was received in Vigilance section. This letter was issued by the Anti-Corruption Branch, CBI, BKC, Mumbai. Along with this letter the CBI forwarded a draft prosecution sanction order as required under section 19(1)(a) of the PC Act, 1988 against S. S. Upadhyay, Appraising Officer."
Please provide me certified copy of this draft prosecution sanction order."
In case no. CIC/CCUM3/A/2022/655590 & CIC/CCUM3/A/2022/658442- The CPIO furnished separate replies to the appellant on 27.05.2022 stating as under:
"It is stated that the information sought by the applicant is confidential information/document which cannot be provided to the applicant as the charge 2 sheet has been issued to the applicant which is still under inquiry stage. Hence an exemption is claimed under Section case 8(1) (h) of RTI, Act, 2005"."
Being dissatisfied, the appellant filed a First Appeal dated 16.06.2022. FAA's vide orders dated 14.07.2022, upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant set of Second Appeals stating inter alia as under:
"...2. (i) It is true that a chargesheet has been issued to me under CCS(Conduct ) Rules 1964 by the Customs Department . This chargesheet has been issued by the Customs department on the basis of investigation done by the CBI . The CBI , after completion of its investigation and filing of a chargesheet against me in the Sessions Court , forwarded the investigation report to the Customs department which , in turn , issued the said chargesheet to me under the CCS(Conduct ) Rules 1964.
(ii) The information sought is copy of notesheets of file . These notesheets relate to the note written by the Commissioner while giving sanction , to CBI to prosecute me in criminal court , as required under section 19(1)(a) of P.C. Act 1988. These notesheets have nothing to do with my departmental chargesheet. The investigation by the CBI in the case has ended. The inquiry proceedings in the departmental chargesheet are in progress . If the information sought is disclosed to me , it will no way impede the process of inquiry proceedings being conducted in pursuance of departmental chargesheet because the said information is not even remotely connected with the departmental proceedings as the same information is an affirmative opinion only of the Commissioner for sanction of my prosecution in criminal court as per the requirements of section 19(1)(a) of P.C. Act 1988. The prosecution filed by the CBI in sessions court is also in progress . If the information sought is disclosed to me , it will no way impede the process of prosecution being conducted in criminal court because the sanction for my prosecution has already been accorded by the Commissioner and the prosecution sanction order has already been filed in the sessions court by CBI.
(iii) The CPIO has never demonstrated how the disclosure of these notesheets to me will Impede the process of Investigation or apprehension 3 or prosecution of mine as required for claiming of exemption under section 8{1)(h) of RTI Act 2005.
(iv) The FAA never asked the CPIO to prove how the disclosure of these notesheets to me would impede the process of Investigation or apprehension or prosecution of mine. He simply rejected my appeal by saying that the rejection of original RTI application under section 8(1)(h) Is justifiable. During the 1" stage appeal before the FAA, the CPIO never tried to demonstrate how the disclosure of these notesheets to me will impede the process of investigation or apprehension or prosecution of mine
3. The FAA himself in his order dated 14/07/2022 has nowhere discussed that how the disclosure of the information will Impede the process of investigation or apprehension or prosecution of mine .
4. (i) The section 19(5) of RTI Act 2005 clearly says that : In any appeal proceedings, the onus to prove that o denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request. (ii) In this case the CPIO has never tried, in the 1" stage appeal proceedings , to show that how the disclosure of these notesheets to me will impede the process of investigation or apprehension or prosecution of mine and therefore he has failed to discharge his onus to prove that denial of my request was justified.
5. In view of the above mentioned facts and grounds it is amply clear that the CPIO has failed to establish that how the disclosure of these notesheets to me will impede the process of investigation or apprehension or prosecution of mine and thus has failed to discharge his burden as required u/s 19(5) of RTI Act 2005..."
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video-conference.
Respondent: Vijayan V K, Asst. Commissioner & CPIO present through video- conference.
The Appellant relied upon the arguments put forth in the grounds of the second appeal as mentioned above, the sum and substance of which is that the dismissal 4 order being an administrative action cannot be equated with investigation and other similar action that is alleged to be pending against him in the CBI or the Department.
To a query from the Commission regarding status of the investigation pending with CBI, the CPIO clarified that although the department proceedings have attained finality; however, the trial process is still underway in the CBI Court. Thus, the information cannot be parted with the Appellant in view of Section 8(1)(h) of RTI Act.
Decision:
The Commission observes from a perusal of records that the main premise of instant Appeal was denial of information under Section 8(1)(h) of RTI Act. In response to which the FAA in a comprehensive manner discharged the onus for denial of information under Section 8(1)(h) of RTI Act with the following observations -
"...10. I find that the appellant claimed that the information sought is not confidential at all and also the appellant, in his appeal, accepted the fact that "It is true that departmental charge sheet has been issued on 03/06/2021 and the case is under inquiry stage".
11. I find that the appellant claimed that the exemption u/s 8(1)(h) of RTI Act 2005 in his case is not sustainable.
12. I find, with reference to the confidentiality, that file notings in the instant case is confidential files involving no public interest but only the interest of a given employee (The Appellant Shrl SSUpadhyay is functioning as Appraising (Vices and is a Govt. employee against whom disciplinary proceedings have been initiated) of a public authority or some such persons, specially when the matter is all about access to disciplinary proceedings files.
13. I find that the information as requested by the appellant, comes within the ambit of the exemptions under Section 8(I)(h) and 8(1)(g) of the RTI Act.
Both these Sections prohibit disclosure of information connected with on- going investigations and prosecutions and information disclosure of which would compromise the source of the information of law enforcement 5 authorities and could jeopardize the life or physical safety of those providing such tip-offs.
14. I find that It has been held by the Apex Court in the Directorate of Enforcement Vs. Deepak Mahajan (AIR 1994 SC 1775), the word "investigation" cannot be limited only to police investigation but includes the "investigation" carried on by any agency whether he be a police officer or empowered or authorized officer invested with the power of investigation. The expression "inquiry" as defined under the Code of Criminal Procedure is of wide import and takes in every proceedings other than a trial conducted by a Magistrate. Thus, the term "investigation" used in Section 8(1)(h). in the context of this Act should be interpreted broadly and liberally. We cannot import into RTI Act the technical definition of "investigation" one finds in Criminal Law. Here. investigation would mean all actions of law enforcement, disciplinary proceedings, enquiries, adjudications and so on. Logically, no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken. In that sense, an investigation can be an extended investigation.
15. I find that during the course of personal haring the appellant has requested for providing information sought under the original RTI application. I find that during the course of Personal hearing the appellant submitted through written submission. that the CPI0 had not applied his mind while issuing the CPIO order dated 27.05.2022..."
Here, it is also noteworthy that the Appellant admitted the fact of pendency of trial process with the Special Court of CBI or in other words, the factum of a pending prosecution has not been denied by the Appellant and considering the nature of documents sought for by the Appellant, it is not out of place for the CPIO to invoke Section 8(1)(h) of the RTI Act for the denial of the information as these are predominantly substantial records of the alleged investigation conducted against the Appellant. Moreover, it is not the case that the exemption of Section 8(1)(h) of the RTI Act not only provides for exemption when an inquiry/investigation is pending, for the sake of clarity, Section 8(1)(h) of the RTI Act is reproduced hereunder:
"(h) information which would impede the process of investigation or apprehension or prosecution of offenders;"6
Section 8(1)(h) of the RTI Act thus provides for more than one aspect of other than an inquiry/investigation and since in the instant case, the prosecution is pending in the criminal case and trial proceedings is underway, the impediment to the process thereof by the disclosure of "all" notings/correspondences enclosed with the letter of grant of sanction; CBI report etc., cannot be ruled out in its entirety.
Having observed as above, the Commission upholds the denial of the information under Section 8(1)(h) of the RTI Act by the CPIO and finds no scope of relief to be ordered in the matter.
The appeal (s) are disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 7