Central Information Commission
P Praveen Kumar vs Central Vigilance Commission on 29 April, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/CVCOM/A/2017/120855/SD
P Praveen Kumar ....अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Central Vigilance Commission,
Satarkta Bhawan,
G P O Complex,
A Block, INA,
New Delhi - 110023. ... ितवादीगण /Respondent
RTI application filed on : 20/12/2016
CPIO replied on : 12/01/2017
First appeal filed on : 20/01/2017
First Appellate Authority order : 14/02/2017
Second Appeal dated : 24/03/2017
Date of Hearing : 22/04/2019
Date of Decision : 22/04/2019
Information sought:
The Appellant sought copies of all correspondences, file noting, letters, documents etc related to O.M. No. 006/CEX/102/30575 and 330345 dated 25.07.2006 and 28.11.2006, respectively to DG (Vig)/CVO, Customs and Central Excise.
Grounds for the Second Appeal:
The CPIO has not provided the desired information.
Relevant Facts emerging during Hearing:
The following were present:-1
Appellant: Not present.
Respondent: Rakesh Desai, Director & CVC, Central Vigilance Commission, Satarkta Bhawan, New Delhi present in person.
CPIO submitted that the information was although denied under Section 8(1)(h) of RTI Act by the then CPIO, at this stage, he wants to invoke the exemption of Section 8(1)(g) of RTI Act. He further clarified that as file noting(s) in vigilance files are confidential in nature; disclosure of the same has been exempted by different coordinate bench of the Commission in the past. In this regard, CPIO relied on the decision in File No. CIC/SB/A/2015/000649 dated 08.02.2017 which was further based on a decision by another coordinate bench in File No. CIC/AT/A/2010/000757 dated 12.11.2010 wherein the ratio laid down in File No. CIC/AT/A/2009/0617 dated 16.09.2009 was reproduced.
Commission reserved the decision in the matter.
Decision Commission has perused the decisions of the coordinate bench and observes that the sum and substance of these decisions is that file noting(s) in vigilance files are held by the public authority in the capacity of third party information and are thus confidential in nature. Further, that disclosure of the same would endanger the life and physical safety of the officer(s) who tender their remarks, as the intent of RTI Applicants in seeking file noting(s) in vigilance cases is to find out which officer has acted favourably and who has acted otherwise.
In the instant case, Appellant has categorically maintained in his First & Second Appeal that he has sought information only in his respect and that too when the investigation against him had attained finality with the issue of the order of penalty. CPIO has largely argued on the aspect of Section 8(1)(g) of RTI Act applicable in the matter, which suggests that the exemption of Section 8(1)(h) of RTI Act was not appropriate in as much as investigation against the Appellant was complete. The rationale behind invoking Section 8(1)(g) of RTI Act is that the disclosure of identifying particulars of the officers who have tendered the noting(s) would endanger their life and physical safety. In this regard, this bench of the Commission places reliance on a judgment of Hon'ble Delhi High Court in the matter of Union Of India vs R.S. Khan [W.P.(C) 9355/2009 & CM No. 7144/2009] dated 07.10.2010, the facts therein are as follows:2
File No : CIC/CVCOM/A/2017/120855/SD
"2. On 5th December 2008, the Petitioner applied to the CPIO in the CGDA seeking information in respect of 8 matters arising from the disciplinary proceedings conducted against her for a major penalty, which had recently been concluded. The Respondent had been awarded the penalty of „censure‟ in those disciplinary proceedings. By an order dated 7th January 2009, the CGDA rejected the request stating that the information cannot be provided as it attracted Sections 8(i)(e), 8(i)(g) and 8(i)(j) of the Right to Information Act, 2005 („RTI‟ Act, 2005). Inter alia, it was observed as under:
'Notings in case of a disciplinary proceeding contain the views and opinions of the various authorities which are fiduciary in nature and the views and opinions, if made open, might antagonize the charged officer. It may also lead to the danger of the lift of the officials who have made those remarks. Further the disciplinary proceedings are conducted in an objective and fair manner with the involvement of lot of agencies which include CGDA, Ministry of Defence (Finance), and DoPT. Further disclosing entire set of notings which includes the personal information/opinion of the officials at various stages does not have any relationship with any public activity or interest.'
3. The Appellate Authority concurred with the view of the CPIO and dismissed the Respondent‟s appeal on 4th March 2009. Thereafter, the Respondent preferred an appeal to the CIC.
4. The CIC observed that the expression „fiduciary relationship‟ in Section 8(1)(e) of the RTI Act, 2005 could not apply to the relationship between a government and its own employees. It did not cover notings in a public document. Likewise, the reference to Section 8(1)(g) of the RTI Act was also held to be misplaced. It was held that notings made on files as part of discharge of official functions was a public activity. The CIC disagreed with the view expressed by the CPIO and the Appellate Authority that the conduct of disciplinary proceedings against the Petitioner that the notings and the files during the disciplinary proceedings did not have any relationship with public activity or public interest."
After considering the submission of parties, Hon'ble Delhi High Court held as under:
"10......This Court concurs with the view expressed by the CIC that in the context of a government servant performing official functions and making notes 3 on a file about the performance or conduct of another officer, such noting cannot be said to be given to the government pursuant to a `fiduciary relationship‟ with the government within the meaning of Section 8(1)(e) of the RTI Act, 2005. Section 8(1)(e) is, at best, a ground to deny information to a third party on the ground that the information sought concerns a government servant, which information is available with the government pursuant to a fiduciary relationship, that such person, has with the government, as an employee. (Emphasis Supplied)
11. To illustrate, it will be no ground for the Union of India to deny to an employee, against whom the disciplinary proceedings are held, to withhold the information available in the Government files about such employee on the ground that such information has been given to it by some other government official who made the noting in a fiduciary relationship. This can be a ground only to deny disclosure to a third party who may be seeking information about the Petitioner in relation to the disciplinary proceedings held against her. The Union of India, can possibly argue that in view of the fiduciary relationship between the Petitioner and the Union of India it is not obligatory for the Union of India to disclose the information about her to a third party. This again is not a blanket immunity against disclosure. In terms of Section 8(1)(e) RTI Act, the Union of India will have to demonstrate that there is no larger public interest which warrants disclosure of such information. The need for the official facing disciplinary inquiry to have to be provided with all the material against such official has been explained in the judgment of the Division Bench of this Court in Union of India v. L.K. Puri 151 DLT 2008, as under:
'The principle of law, on the conjoint reading of the two judgments, as aforesaid, would be that in case there is such material, whether in the form of comments/findings/ advise of UPSC/CVC or other material on which the disciplinary authority acts upon, it is necessary to supply the same to the charge sheeted officer before relying thereupon any imposing the punishment, major or minor, in as much as cardinal principle of law is that one cannot cat on material which is neither supplied nor shown to the delinquent official. Otherwise, such advice of UPSC can be furnished to the Government servant along with the copy of the penalty order as well as per Rule 32 of the CCS(CCA) Rules.' (Emphasis Supplied) XXX
15. It may be further added that the Respondent has already retired on 31st October 2009. Further, even the censure awarded to the Petitioner has been 4 File No : CIC/CVCOM/A/2017/120855/SD quashed by this Court by an order dated 9th August 2010 in Writ Petition (Civil) No. 12462 of 2009. The Respondent has also placed on record a copy of the order passed by the CGDA treating the suspension period as duty period, and directing the release of full pay and allowances to the Respondent for the said period.
16. In light of the above developments, this Court finds no merits in any of the apprehensions expressed by the CPIO in the order rejecting the Respondent‟s application with reference to either Section 8(1)(g) of the RTI Act 2005.The disclosure of information sought by the Petitioner can hardly endanger the life or physical safety of any person. There must be some basis to invoke these provisions. It cannot be a mere apprehension.
17. As regards Section 8(1)(j), there is no question that notings made in the files by government servants in discharge of their official functions is definitely a public activity and concerns the larger public interest. In the present case, Section 8(1)(j) was wrongly invoked by the CPIO and by the Appellate Authority to deny information to the Respondent.
Now, Commission is of the considered opinion that the instant case is squarely covered by the aforementioned ratio of Hon'ble Delhi High Court as in this case also Appellant has sought for relevant correspondences, file noting(s) pertaining to his own investigation. Further, the argument of the CPIO that the information is being withheld as third party information of the public authority points more towards the factum of a fiduciary relationship that exists between the public authority and the officers tendering the file noting(s) in vigilance cases. In this context, adverting to the ratio laid down by the Hon'ble Delhi High Court, Appellant cannot be denied the disclosure of file noting(s) pertaining to an investigation against his own self. Moreover, as evinced from the aforesaid judgment, extending a fiduciary status to these file noting(s) on the pretext that these have been originated by third party officers and thus is exempted from disclosure under the garb of Section 8(1)(g) of RTI Act is not appropriate.
In the instant case, keeping in view the apprehensions of the CPIO, Section 8(1)(g) of RTI Act can at best be invoked to obliterate only the names, designations and any other identifying particulars of the other officers from the relevant file noting(s), correspondences and letters.
5In view of the foregoing, Commission directs the CPIO to provide relevant and available information sought in the RTI Application with respect to the investigation held against the Appellant. In doing so, CPIO is at liberty to obliterate (by way of blacking out or severance) the names, designations and identifying particulars of any other individual figuring in the records except that of the Appellant. This shall be done in consonance with the provisions of Section 10 of RTI Act. The said information shall be provided free of cost to the Appellant within 15 days from the date of receipt of this order and a compliance report to this effect be duly sent to the Commission by the CPIO.
The appeal is disposed of accordingly.
Divya Prakash Sinha ( द काश िस हा )
Information Commissioner ( सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
Haro Prasad Sen
Dy. Registrar
011-26106140 / [email protected]
हरो साद सेन, उप-पंजीयक
दनांक / Date
Signature Not Verified
Digitally signed by User
Date: 2019.04.29 12:05:23 IST
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