Central Information Commission
Shri Anil Kumar Dhyani vs Army Base Workshop, Delhi Cantt. on 23 July, 2008
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/00608 & 852 dated 30.5.2007 and 19.8.2007 respectively
Right to Information Act 2005 - Section 19
Appellant - Shri Anil Kumar Dhyani
Respondent - Army Base Workshop, Delhi Cantt.
Facts:
These are two appeals from Shri Anil Kumar Dhyani of Mayur Vihar Phase-1, Delhi:
FILE NO. CIC/WB/A/2007/00608 In his application of 1.12.06 Shri Anil Kumar Dhyani sought information as below, together with copies of 11 documents:
1. "Provide me the complete details of bonafide duties & responsibilities, which was expected and assigned to me at the time of my appointment in the workshop as a "Machinist".
2. Whether any Industrial (Technical) employee can be assigned/ engaged on duties to make clerical works instead of technical work for which he was appointed and can he will be responsible for any computerized print outs error (which was not checked by his higher officer and other persons at the time of checking/ distribution/ auditing of Check Roll) as the error is not reflecting in any individual's column in the Check Rolls as he was a Technical employee and performing clerical works as per orders of Administra5tion? If yes then provide me Certified photocopy of that authority letter/ GOI Instructions/ Any Fundamental Rules or Regulations/ SOPs and Daily Order Part 1 etc.
3. Whether if any computerized error (Which was reflecting only on the Cumulative summery of the Check Roll and not in any individual's column) was observed after distribution & audit of pay in the clerical work done by an industrial employee as the same was checked, passed, distributed and audited by higher authorities (computer operator, O/S, A/c Officer & Paying Officers along with Senior Chargemens, Audit & Test Audit) then who will be the responsible for the computerized error & wrong checking, distribution and auditing of pay?1
4. Provide me in details the complete duties and responsibilities of the below mentioned persons concerning preparation, pricing, checking, passing, distribution and auditing of the Check Rolls: 1. Computer Operator, 2. Check Roll Clerk, 3. Office Superintendent,
4. A/c Officer, 5. Paying Officer, 6. Senior Chargemens (both Identifier and witness), 7. Auditor, AAO &LAO and 8. Test Auditor."
In addition he sought information on the following 4 points together with photocopies of 4 documents:
1. "If a under Suspension Industrial person is eligible to get Traveling Allowance with his Subsistence Allowance especially of those particular dates of departmental inquiry proceedings which was attended by him and if there is some gap (let us say 2 months) is created between the present and next date of departmental inquiry proceedings then whether the person is eligible to get Traveling Allowance for those two months gap period?
2. Provide me a list of last 20 years of those under suspension Industrial employees with their Supplementary Check Roll Nos. with date of whom regular monthly pay (Subsistence Allowance) was sent to LAO for pre-audit and after pre-audit payment was made to those under suspension Industrial employees with the date of receiving of payment by the under suspension employees.
3. Whether it is justified and legally right that Administration is paying monthly Subsistence Allowance to me after pre-audit on absentee dates i.e. on the 6th or 7th of every month whereas all the other regular Industrial persons are getting their monthly salaries as Post-audit of 1st day of every month as I am also eligible to get my Subsistence Allowance on 1st day of every month? If there is any GOI Instructions/ Any Fundamental Rules or Regulations/ SOPs & Daily Order Part 1 are available on records in which it was mentioned that monthly Subsistence Allowance should to paid to the under suspension Industrial person after pre audit and on absentee dates only then provide me Certified copy of their order.
4. Whether the Administration can decease the rate of Subsistence Allowance after two years and for two years initially granted to the person at the time of his suspension without giving any satisfactory and sufficient reasons/evidence/ clarifications and without any fault of the person."
"Provide me complete both sides (i.e. Attendance side and computerized print out payment side) photocopy of duplicate/ 2 regenerated check roll no. XII of Jan 2000 along with its payment sheet."
This application was transferred from Army H.Q. to the PIO, HQ Delhi Area on 11.12.06 by Col. S.Thapar, Director (Media), after which appellant received a response of 11.1.07 from Col. Anant Niranjan, Col. (Admn) 505 Centre Base Workshop, as follows:
"On behalf of PIO, HQ Delhi Area, I am directed to inform you that the information sought for vide ibid application under Annexure 'R' has been examined. You have sought information pertaining to:
(a) Bonafide duties and responsibilities of Machinist, Computer Operator, O/ Supdt, Account Officer, Paying Officers, Senior Chargeman, Auditor AAO, LAO and Test Auditor.
(b) Daily order Part I, Pay slips, complete details of inquiry procedure .
(c) Photocopies of noting sheets/ minutes sheet, photocopies of check roll.
(d) Certified copies of the certain letters and Daily Order Part I Order etc. On careful consideration of your request and the relevant records pertaining to the matter, it is noted that the information sought cannot be provided as the same is exempted from disclosure under Sect 8 of the said Act being disclosure which prejudicially affect: -
(a) Which would prejudicially affect: -
(i) The process of investigation or apprehension or prosecution
of offenders.
(b) It is personnel information the disclosure of which has no
relationship to any public activity or interest, or which would cause unwarranted invasion of privacy of any individual."
Subsequently on 12.1.07, in response to a reminder of 29.12.06, sent by appellant Shri Dhyani, Col. A.R. Prabhakar, apologized for the delay in response sent to Shri Dhyani. Shri Dhyani has in the meantime moved his first appeal on 19.1.07 before COS, HQ Western Command, Chandimandir, Chandigarh on the following grounds:
3"The most important thing I want to mention here that presently I am under suspension and CBI after his investigation has already filed charge sheet against me in the Patiala House Court, New Delhi on 18.8.2005 and its day by day proceedings are going on. Therefore, the pleas taken by the Commandant for rejecting my application is totally wrong and baseless as the same does not applies in my case. It is also evident from the records that I vide my letter dated 21.11.2006 and other letters has asked the Commandant does not shown any curtsy to provide me the details of my Appellate Authority and adopting the tactics of non providing/ useless/ delayed & improper information's to me and trying to harass me by stretching the time as long as possible so that I will drop the idea of taking necessary documents/ information's from him as most of the information desired to me are going against them.' Subsequently in an order of 2.2.07 Lt. Gen. A. N. Aul, COS, HQ Western Command and First Appellate Authority ordered as follows:
"I have carefully gone through your request for infor. under RTI Act, 2005, the documents asked for at Ser Nos. 1, 4, 5, 6, 7, 9, 10, 12, 20, 21, 22 and 23 are permissible to be provided to you under the provisions of RTI Act 2005. I accordingly, direct Comdt 505 Army Base Wksp., New Delhi to furnish these documents to you under intimation to the Appellate Authority within a period of 7 days from the receipt of this direction.
The documents mentioned at Ser Nos. 2, 3, 8, 11, 13, 14, 15, 16, 17, 18, 19 are either in the form of answer to the questions or are available to the general public in the form of compilation of status/ instructions on the subject which the applicant can have free excess (sic) to as a member of the general public."
Consequently, Col. Anant Niranjan provided further information to appellant on 12.2.07 as follows:
"(a) Ser No. 1- Duties & Responsibilities of a Machinist.
(b) Ser No. 5- Noting Sheets while reviewing subsistence allowance after every 3 months w.e.f. Sept 2001 to Dec.
2006.
(c) Ser No. 6- Daily Order Part I w.e.f Sep 2001 to Dec 2006 on
which reviewing orders of subsistence
allowance published.
4
(c) Ser No. 7- Monthly pay slips from Sept 2001 to Nov 2006.
(d) Ser No. 9- Minutes sheets dated 19.10.2001, 20.12.2002 &
Convening Order No. 21401/ Adm dated 15.6.2001. Complete Minute sheets are enclosed as per Srl. 5 including Minutes Sheet dated 19.10.2001 and 20.12.2002. Note 13 and Note 29 of Minute Sheet refers.
(e) Ser No. 10- Daily Order Part I in which the marriage, change of nomination is published.
(f) Ser No. 12- Check Roll No. V of March 2001.
(g) Ser No. 20- AHQ, MGO (Disciplinary Authority) Letter No's
37215/55/EME CIV-3 dated 6.2.2002 and even number dated 22.8.2003 and B/37215/55/EME CIV-3 dated 4.5.2005.
(i) Ser No. 22- Daily Order Part I No. 420 dated 23.7.1998.
(ii) Ser No. 23 Regenerated Check Roll No. XII of Jan 2000. No payment sheet was generated."
However, appellant Sh. Dhyani addressed a further letter to first appellate authority on 17.2.07 stating that he had not received the orders of COS and that the Cmdt. had not provided him the information that he had sought.
In his second appeal before us the prayer of Shri Dhyani is as below:
1. "Order the Commandant to give me all the balance actual required documents/ information's mentioned at Sr. No. 2, 3, 4, 7, 8, 11 to 19 & 21 in my application dated 01.12.2006.
2. Grant Rs. 592/- from Commandant on account of Typing, Photocopy, Postage & Bank Commission charges spent by me in reply to the wrong/ incomplete/un-replied letters of the Commandant.
3. Grant Rs. 5000/- as Compensation Charges from Commandant because of mentally harassment created and imposed over me by the Commandant because he has grudge against me and he don't want that will re-
join the workshop again at any cost.
54. Impose a major penalty of fine over Commandant and Public Information Officer, HQ Delhi Area for their non- serious working attitude as both of them misused their position & powers and also violate the mandatory provisions of the Act.' Consequent to this he has submitted a further letter of 23.4.07 to us, in which he has stated as below:
"The attitude and co-operation of Public Information Officer, HQ Delhi Area and Commandant is totally unsatisfactory as Public Information Officer have never replied any of my letters till today and Commandant who had a grudge against me was always trying to show himself as innocent and trying to harass me by adopting different-2 tactics such as non reply of my letters, providing wrong information's, sending back date signature letters to me etc so that I can drop the idea of taking necessary information/ documents desired to me from my office under this Act.' In his response to the appeal notice Lt. Col. Anant Niranjan in a letter of 10.7.08 has submitted as follows:
A "He is involved in an act of misappropriation of Govt. money i.e. Rs. 1,63,971/- approx. The individual has been placed under suspension w.e.f. 25th September 2001 and the case is being reviewed quarterly regularly and he is getting subsistence allowance up to 75% of his pay at present."
B "That as per the instructions received from First Appellate Authority (Annexure R-5), the necessary photo copies of information/ documents were provided to him vide letter No. PF/4828/LC dated 12th February 2007 (Annexure R-6) except the duties and responsibilities of audit, AAO, LAO and Test Audit as the same were not held with this office since they were controlled by respective CDA and he was advised to ask the same directly from them. He further submitted another representation No. 4828/AKD/RTI/2008/2006/10 dated 22.12.2006 and the same was not replied due to unwarranted info/ issue.
He further submitted a copy of Shri Dhyani's representation No. 4828/AKD/RTI/2007/21 dated 02.03.2007 to First Appellate Authority to review the directions regarding points withheld at the second Para of his decision as 6 quoted by us, and he was replied by First Appellate Authority HQ Western Command vide letter No. 46802/Cases/RTI/AKD dated 14th March 2007) stating that the directions of Appellate Authority cannot be reviewed. However, in response to his representation No. 4828/AKD/RTI/2007/21 dated 02.03.2007, certain copies of the documents were also sent to him in an office letter dated 31st March 2007.
Moreover, he pleaded as follows:
"The matter was also clarified by the CBI, Anti Corruption Branch, CGO Complex, New Delhi that the copies of relied documents has already been given to Shri Anil Kumar Dhyani. A copy of the CBI, Anti Corruption Branch, letter No. RC-DAI-2002-A-0033/2122 dated 22.2.2007 is enclosed as (Annexure R-13).
That Shri Anil Kumar Dhyani has submitted 1st Appeal No. 4828/AKD/RTI/2007/25dated 7.5.2007 to Appellate Authority HQ Western Command (Annexure R-14) to reply his application dated 02.4.2007. He was further informed by the 1st Appellate Authority HQ Western Commandant vide letter No. 46802/RTI/AKD dated 11.7.2007 (Annexure R-15) that most of the information has been provided to him. And further directed that the PIO HQ Delhi Area has been directed to provide you the additional information no sooner it is considered that this information will not impede the process of investigation."
This response goes on to contest each of the contentions made by appellant in his appeal before us.
FILE NO. CIC/WB/A/2007/00852 By an application of 2.4.07 Shri Dhyani sought the following information:
"I would like to inspect the files/ documents etc annexed herewith as "Annexure P" with this application under sub section (1) of Section 7 along with Form "A" and Banker Cheque No. 002357 dated 3.3.2007 of Rs. 10/- are enclosed herewith for your further necessary action.
All the details of files/ documents mentioned in the "Annexure P"
which was required to me for inspection are available in the 7 premises of my office i.e. 505 Army Base Workshop, PIN 900106, C/o 56 APO."
To this he received a response of 1.5.07 from Col. Rajiv Sethi, Col. (Admn) of HQ Delhi Area, as follows:
"You have already been provided the document by the CBI authorities vide CBI, Anti Corruption Branch, New Delhi letter No. RC. DAI-2002-A-0033/10324 dated 15th Jan 20065 and RC-DAI- 2002-A-0033/2122 dated 22 Feb 2007. Moreover, photocopies of the documents as requested under RTI Act 2005 have again been provided to you by 505 Army Base Wksp as per the orders of HQ (HR) 1st Appellate Authority under RTI Western Command Chandimandir vide 505 Army Base Workshop letter No. PF/4828/LC dated 12th Feb 2007 and 31st March 2007. Further it is submitted that the departmental inquiry has already been finalised and the same is at present with MGO, Integrated HQs of MoD for decision.
Therefore, your request is rejected accordingly, as the disclosure of such information given under Section 4.1 (viii) of RTI Act 1995 can not be made as you are under trial as mentioned above."
Shri Dhyani then moved his first appeal before Lt. Gen. A. N. Aul, first Appellate Authority and COS HQ Western Command, Chandimandir, Chandigarh on 7.5.07, in which he has submitted that he has not till that date, received any reply to his original application. However, on receiving the same he has made another representation to the 1st appellate authority on 12.5.07 alleging that Col. Rajiv Sethi PIO had infact back-dated the letter sent to him in response to his RTI application so as to have it appear to be within the mandatory limit of sec. 7(1) of the RTI Act. In this case the response of the Appellate Authority to this letter, which includes a response to two other representations received by him by HQ Western Command on 25.5.07, was as follows:
"As and when it is considered that providing information/ details/ documents to you, as requested vide Para 5 of your letter under reference, will not impede the process of investigation or apprehension or prosecution in your case of trial, you may inspect the documents and take notes/ photo copies, on payment, in terms of RTI Act-05. In this connection your attention is drawn to Section 2 (j), Sec 8 (h), and Regulation of Fee and Cost, Rules 2005 of the RTI Act 2005."8
In this case, therefore, the denial is clearly on grounds of the matter being under prosecution u/s 8(1)(h). The prosecuting agency in this case is the CBI.
The prayer of appellant Shri Dhyani in his second appeal before us is as follows:
"a. Order the Public Information Officer and Head of my department i.e. Commandant 505 Army Base Workshop, PIN 900106, C/o 56 APO to allow me to inspect all the files/ documents mentioned in my application dated 02nd April 2007 on a complete working hour day timings of my department i.e. 9.00 a.m. to 4.30 p.m. b. Order of the Commandant to provide me notes/ photocopies desired to me on the spot itself while inspection of files/ documents, on payment, in terms of Sec 2 (j), Sec 8 (h) & Regulation of FEE & Cost Rules 2005 o the RTI Act 2005 and also instruct him that he will no adopt any tactics of non providing of notes/ photocopies to me such as photocopy machine not working or under maintenance, photocopy machine operator or paper (big or small) are not available etc. c. Impose a major penalty over PIO and Commandant (if he is also guilty) for their non-serious working attitude as both of them misused their position and powers and also violated the mandatory provision of the Act.
d. Order the PIO to provide me all the details/ document mentioned in my letters dated 12th may 2007 and 21st may 2007.
e. Order the PIO to produce their dispatch register in the Commission so that the responsibility in delay sending his letter after 8 days can be checked and responsible person (s) could be punished."
The appeal was heard on 14.7.08. The following are present:
Appellant Shri Anil Dhyani Respondents Brig. B. B. Varma, Cmdt. 505 Army Base Workshop, Delhi Cant. Maj. M. Gahlot, CSO-1 (Legal) RTI Cell, IHO of MOD (Army) Col. S. Garg, c/o PIO HQ Delhi Area 9 Col. A. Niranjan, Col. (Admn) 505 ABW DECISION NOTICE In the very first instance we must caution appellant Shri Dhyani against the use of intemperate language in seeking access to information, as is quoted by us above in his references to CPIOs Col. Niranjan and Col. Rajiv Sethi. Objectionable under any circumstances this is particularly so in the case of the defence forces, personnel serving in which are expected to maintain the highest order of discipline.
Having heard the parties and examined the records we hereby decide as follows:
FILE NO. CIC/WB/A/2007/00608 In this case it has already been found that documents sought at Ser Nos. 2, 3, 8, 11, 13, 14, 15, 16, 17, 18, 19 were open to disclosure, and in fact already in the public domain. Since appellant Shri Dhyani is not satisfied with what he has got, he will be allowed to inspect these documents between 9 and 11.00 am on Saturday August 2, and obtain such copies as he applies for. Since this information was not provided within the stipulated time period it will be provided free of charge in accordance with Sec 7(6).
FILE NO. CIC/WB/A/2007/00852 In this case, we have found that the refusal of information is clearly on grounds of the matter being under prosecution u/s 8(1)(h). The prosecuting agency in this case is the CBI. In such cases however, it is not enough to simply cite a clause of the Act and seek exemption there from without holding out cogent reasons on why this should be so exempt. In this case the judgment of the Delhi High Court in W.P.(C) No.3114/2007 - Shri Bhagat Singh Vs. Chief Information Commissioner & Ors is of relevance, since it deals directly with the application of sec. 8(1)(h):10
11. "The Universal Declaration of Human Rights, adopted by the United Nations in 1948, assured by Article 19, everyone the right "to seek, receive and impart information and ideas through any media, regardless of frontiers". In Secretary Ministry of Information and Broadcasting, Govt. of India and others vs. Cricket Association of Bengal and others (1995 (2) SCC 161) the Supreme Court remarked about this right in the following terms:
"The right to freedom of speech and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an "aware" citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizen to arrive at informed judgment on all issues touching them."
This right to information, was explicitly held to be our fundamental right under Article 19(1)(a) of the Constitution of India for the first time by Justice K.K. Mathew in the State of U.P. vs. Raj Narain, (1975) (4) SCC 428. This view was followed by the Supreme Court on a number of decisions and after public demand, the Right to Information Act, 2005 was enacted and brought into force.
12. The Act is an effectuation of the right to freedom of speech and expression. In an increasingly knowledge based society, information and access to information holds the key to resources, benefits, and distribution of power. Information, more than any other element, is of critical importance participatory democracy. By one fell stroke, under the Act, the make of procedures and official barriers that had previously impeded information, has been swept aside. The citizen and information seekers have, subject to a few exceptions, an overriding right to be given information on matters in the possession of the state and public agencies that are covered by the Act. As is reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the government and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.
13. Access to information under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to 11 shadow the very right self. Under Section 8,exemption from releasing information is granted if it would impede the process of investigation process cannot be a ground for refusal of the information, the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material, sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information.
14. A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms, there is some authority supporting this view (See Nathi Devi vs. Radha Devi Gupta 2005(2) SCC201; B. R. Kapoor vs. State of Tamil Nadu 2001 (7) SCC 231 and V. Tulasamma vs. Sesha Reddy 1977(3) SCC
99). Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restrictions on the rights under the Act, which is unwarranted."
Justice Ravindra Bhat specifically notes, "As held in the preceding part of the judgment, without a disclosure as to how the investigation process would be hampered by sharing the materials collected till the notices were issued to the assessed, the respondents could not have rejected the request for granting information. The CIC, even after overruling the objection, should not have imposed the condition that information could be disclosed only after recovery was made1"
In the present case, it is the CBI that is the prosecuting agency. Yet there is nothing on record to indicate that the prosecuting agency has found that disclosure of information sought by appellant Shri Dhyani will in fact impede the CBI's prosecution. The Army Base Workshop has simply assumed as much. Under the circumstances, Brig Varma, Comdt. 505 Army Base Workshop will 1 Para 15 of the judgment.12
refer the request to CBI, obtain its advice with reasons for exemption if any sought, as defined in the above order of the Delhi HC and take further action in accordance with that advice, under intimation to Shri Pankaj Shreyaskar, Jt Registrar, Central Information Commission.
Both appeals are disposed of accordingly. Partly reserved in the hearing, this Decision is announced in open chamber on 23.7.'08 Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 23.7.2008 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.
(Pankaj Shreyaskar) Joint Registrar 23.7.2008 13