Central Information Commission
Shri Y.R. Iyer vs Customs Department on 30 June, 2009
CENTRAL INFORMATION COMMISSION
.....
F.No.CIC/AT/A/2009/000200
Dated, the 30th June, 2009.
Appellant : Shri Y.R. Iyer
Respondents : Customs Department
Pursuant to Commission's notice dated 25.04.2009, this matter came up for hearing on 28.05.2009. Appellant was absent when called. Respondents were present through Shri Alok Srivastava, Assistant Commissioner.
2. As stated in his second-appeal petition, the matter before the Commission now is appellant's RTI-application dated 27.09.2008 and the respondents' response thereto.
3. During the hearing, CPIO informed the Commission that copies of the following files, as requested by the appellant, had been provided to him:-
"C. File No.VIII/10-2/AP/2005 of SVP, International Air port, Ahmedabad under which Show cause notice dated 29.09.2005 and addendum to SCN dated 11.08.2006 was issued by the Additional Commissioner of Customs, Ahmedabad.
D. File No.VIII/10-2/AP/2005 Pt.I and File No.VIII/10- 2/AP/2005 Pt.II under which investigation by preventive officers of Customs were carried out.
E. File No.VIII/10-15/Addl.Comm/2005 under which Order in Original No.01/Addl. Comm./AP/Import/2007 dated 12.01.2007 & corrigendum dated 18.01.2007 were issued by the Addl. Commissioner of Customs, Ahmedabad."
4. Files with the following description were not provided on the ground that these pertained to an ongoing disciplinary proceeding involving the appellant and any disclosure at this stage would impede the process of enquiry. These files were:-
AT-30062009-01.doc Page 1 of 6 "A. File No.II/10(A)(con)3/2005, under which suspension order dated 20.04.2005 was issued by the Commissioner of Customs, Ahmedabad.
B. File No.II/39(con)6/2005 of Sardar Vallabhai Patel International Airport, Ahmedabad under which a letter dated 19.04.2005 was issued by the Assistant Commissioner of Customs, Ahmedabad to the Additional Commissioner of Customs, Ahmedabad.
I. File No.II/39(Vig.)10/2006 under which Inquiry Report dated 03.05.2007 of Inquiry Officer coming out of disciplinary proceedings was received on 31.05.2007 by the appellant."
Decision:
5. Considering the fact that these files are currently subject-matter of an ongoing enquiry, any action for disclosure of information thereof will surely impede the enquiry. The Enquiry Officer is entitled to conduct the enquiry as per the procedure established by the Rules governing conduct of such enquiries without any intrusive probing by the officers enquired into or by third-parties. This is consistent with the decision of the Commission in V.K. Gulati Vs. DG Vig. Customs & Central Excise; Appeal No. CIC/AT/A/2007/01508; Date of Decision: 17.06.2008
6. The decision of the respondents not to disclose the above files is, therefore, upheld.
7. Respondents informed that in the following files, there were no note-sheets which could be provided to the appellant as per his request:-
"F. File No.VIII/39-06/PI/HQ/2006 under which Presenting Officer submitted his brief to the Inquiry Officer in the Departmental Proceedings against the undersigned."
As the file contained no note-sheets, no disclosure of it can be authorized.
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8. According to the respondents, the following file was untraceable and the note-sheet of this file will be provided to the appellant as soon as the efforts of the office to locate this file fructify. The file was:-
"H. File No.II/39(Con)12/2005 from which information of mobile no.9825474896 & 9825631168 were called from Fascel Ltd, Ahmedabad by the Joint Commissioner of Customs, Ahmedabad."
As the file is untraceable despite a search, it is not possible to direct its disclosure as of now.
9. The following file comprising the report of the Enquiry Officer submitted to the Commissioner of Customs, Ahmedabad is also a subject-matter of an ongoing enquiry according to the respondents and shall be provided to the appellant as soon as the enquiry is over as any action to disclose information pertaining to this file will impair the ongoing enquiry proceeding. The file was:-
"G. File No.NKC/YRI/Con/2006 under which Inquiry Officer submitted his Inquiry Report to the Commissioner of Customs, Ahmedabad."
There shall be no disclosure of the above file till a decision is made in this matter.
10. In this Commission, we have come across several second-appeals filed by employees of public authorities demanding to see all documents and records in matters of investigations and enquiries current against them. Sometimes, such requests were made on behalf of the employees by third-parties, such as wives, parents, brothers, friends, etc. Their purpose invariably was to slow-down or to impede the process of the enquiry whose conclusions such employees feared. In exceptional cases, Commission has even authorized disclosure of documents from enquiry-related files when it was felt that a grave injustice was being done to the employee by delays in the enquiry or in the manner in which the enquiry was being conducted. When requests are made for a whole-sale disclosure of all enquiry-related files, the Commission has to be on its guard for the disclosure authorized in such matters may produce the effect of delaying, derailing or impeding the enquiry process, which will embolden and encourage errant employees to use RTI Act to achieve their personal ends. The Preamble to the RTI Act very clearly enjoins that the provisions of the Act had to be used to AT-30062009-01.doc Page 3 of 6 combat corruption of all variety. Free access to employees to documents relating to enquiries against them has the potentiality to defeat the purpose of the RTI Act as well as of the enquiry against the employee. This calls for careful application of mind about disclosure of this variety of information.
11. There is another matter which has been highlighted in the Commission's decision in U.R.M. Raju Vs. Visakhapatnam Port Trust; Appeal Nos. CIC/AT/A/2008/01148 & 01156; Date of Decision:
13.03.2009, which was about the implication of Section 124 of the Indian Evidence Act read with Sections 2(n) and 11(1) of the RTI Act.
The burden of the decision cited above was that a public authority within the meaning of Section 2(n) of the RTI Act is itself a third-party relating to any information which it holds confidentially. Such public authority shall be entitled to communicate its stand to the CPIO within the meaning of Section 11(1) of the RTI Act about why it would wish certain information to remain confidential. It may bring to the CPIO's notice the public interest, which it believes, is served under Section 124 of the Indian Evidence Act through the confidentiality of the information. Should the public authority succeed in satisfying the CPIO that the information ought to remain confidential in public interest, or for any other reasons that may be urged, the CPIO will have to consider these submissions to decide whether these were strong enough for him to allow the requested information to remain undisclosed.
12. The appropriate provision of Section 11(1) of the RTI Act is reproduced below. This Section, after laying down the system of consultation with third-parties in matters of confidential information, goes on to add in the proviso as follows:-
"provided that ................, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party"
The substance of this proviso is that unless there is proof that disclosure of information relating to confidential enquiries and investigations against employees of public authorities ought to be disclosed in public interest, these should be allowed to remain confidential, because in most cases, these disclosures can and do injure the interests of the third-parties, which, as in this case, can be a public authority. Most such enquiries and investigations are launched under CCS (CCA) Rules, or other varieties of disciplinary rules. These Rules / instructions contain their own procedure for carrying out enquiries / AT-30062009-01.doc Page 4 of 6 investigations and define the roles of public authority, the competent authority, the Enquiry Officer as well as the entitlement for access to documents of the employee enquired into. For example, each such employee facing an enquiry is entitled to place before the Enquiry Officer a list of documents and files he wishes to access and examine in order to build his defence. Enquiry Officer, on examination of the request, decides what documents could be allowed to the employee to be accessed and, what should be withheld. Very often, the note- portion of the files dealing with the decision to launch the enquiry against the employee is withheld from disclosure.
13. It has been our experience in the Commission that such employees now use the RTI Act to seek access to the very information the Enquiry Officer or the competent authority, using his discretion, decides not to allow to such employees.
14. Public authorities have persuasively argued that if RTI Act is allowed to be used by such employees to supersede the discretion of the Enquiry Office or the competent authority, it will amount to placing the Central Information Commission in the position of a superior appellate body over the Enquiry Officer and the competent authority. This is especially disagreeable given the fact that the CCS (CCA) Rules and the Disciplinary Proceedings Rules, all have their own independent sets of appellate procedure open to an employee to impeach the order of the Enquiry Officer to withhold any information, including file-notings. These public authorities have argued that RTI Act should not be allowed to be used by such employees as the tool to interfere with extant processes under other Acts and Rules.
15. I think there is merit in the argument that file-notings in vigilance and enquiry-related files, which are held confidentially by a public authority, must not be allowed to be disclosed to the employee or to any other seeking that information. The reason for that is sanguine. First, such disclosures serve no public interest. The employee's personal interest cannot be conflated with public interest. Second, such disclosures undeniably cause injury to the interest of the third-party, who holds these file-notings in certain special category of files, i.e. vigilance and enquiry-related files, confidentially. The officers and members of the staff who make such notings perform the thankless task of commenting on the conduct, reputation, behaviour of the officers enquired into apart from analyzing the evidence in order to help the competent authority make an informed decision. Such comments and remarks recorded by officers, if disclosed to the very AT-30062009-01.doc Page 5 of 6 person against whom these are recorded, have the potentiality of being used by the employee to start legal processes against these officers for charges such as defamation, criminal conspiracy and so on. There is also a chance that the officer enquired into attempt to seek vengeance against those who recorded adverse notes against him in the note-files. The vengeance can take several forms, such as physical and mental threats, causing annoyance, long and expensive judicial proceedings and so on. Even if such actions of the employees or others sympathetic to them, do not yield any useful result to them; as long as these actions last, they cause boundless anxiety, annoyance, physical discomfort and stress to the officers for no fault of theirs, and in true fact, for doing their job ably, honestly and conscientiously. Anonymity of officers recording file-notes deserves to be protected in their own interest as well as the interest of the system they serve.
16. There is, therefore, enough reason to conclude that disclosure of confidential file-notings in vigilance, investigation and enquiry-related files, attracts the first proviso of Section 11(1), i.e. it possessing the power to inflict "possible harm or injury to the interests of such third- party." The public authority is duty-bound to protect the interests of its officers who examine through their notings in files the conduct of other employees of the public authority and thereby expose themselves to possible revengeful action by those whose conduct they bring under scanner.
17. It needs to be reiterated that no public interest whatsoever is served by disclosing this information to outsiders including the officer enquired into.
18. It is my considered view, therefore, that file-notings in vigilance, enquiry and investigation-related files, if held confidentially by the public authority, must not be allowed to be disclosed under the RTI Act, Section 11(1).
19. Matter is decided accordingly.
20. Copy of this direction be sent to the parties.
( A.N. TIWARI ) INFORMATION COMMISSIONER AT-30062009-01.doc Page 6 of 6