Central Information Commission
Vivek Kumar Pandey vs Chief Commissioner Of Customs And ... on 2 November, 2018
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग
, मुिनरका
Baba Gangnath Marg, Munirka
नई द
ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/CCEMT/A/2017/155476-BJ
Mr. Vivek Kumar Pandey
....अपीलकता
/Appellant
VERSUS
बनाम
CPIO,
Office of the Commissioner,
Central Goods & Service Tax, Dehradun
E-Block, Nehru Colony
Dehradun - 248001
... ितवादीगण /Respondent
Date of Hearing : 01.11.2018
Date of Decision : 02.11.2018
Date of RTI application 17.02.2017
CPIO's response 14.03.2017
Date of the First Appeal 11.04.2017
First Appellate Authority's response 04.05.2017
Date of diarized receipt of Appeal by the Commission 09.08.2017
ORDER
FACTS The Appellant vide his RTI application sought information on 05 points regarding photocopies of all correspondences with enclosures from the CBI in connection with sanction of prosecution made against him along with the photocopies of all note-sheets of the file, photocopy of CBI letter dated 19.02.2016 and other issues related thereto.
The CPIO, vide letter dated 14.03.2017 while relying upon the decision of the Commission in the case of Sarvesh Kaushal vs. F.C.I and others (Appeal No. 243/ICPB/2006 and 244/ICPB/2006 dated 27.12.2006), denied disclosure of information u/s 8(1) (h) of the RTI Act, 2005. Dissatisfied with the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 04.05.2017, concurred with the response of the CPIO. HEARING:
Facts emerging during the hearing:Page 1 of 4
The following were present:
Appellant: Mr. Vivek Kumar Pandey (Inspector) through VC;
Respondent: Mr. Tribhuwan Yadav, Asst. Comm. & CPIO through VC;
The Appellant reiterated the contents of his RTI application and stated that the information sought by him had been wrongly denied by the Respondent. In its reply, the Respondent while reiterating the submissions of the CPIO / FAA stated that in their written submission dated 29.10.2018, a copy of which was delivered to the Appellant, the entire matter had been explained extensively. The Commission was in receipt of a written submission from the Respondent dated 29.10.2018 wherein while reiterating the RTI application, reply/order of the CPIO/FAA, it was submitted that as per the records available in their office the ongoing departmental inquiry as well as trial of the Appellant by the CBI Court in the subject of corruption case was still pending and these ongoing departmental inquiry and charge sheet filed by CBI in their Trial Court has yet not been completed and therefore, their office was of the opinion that the information sought by the Appellant could not be provided at this stage. He further relied upon the judgment of the Apex Court in the case of Directorate of Enforcement Vs. Deepak Mahajan (AIR 1994 SC 1775) wherein it was observed that 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. It was further submitted that as per reply received from the Vigilance Section of CGST Commissionerate, Dehradun vide letter dated 29.10.2018, the departmental proceedings were still not completed and prosecution trial was also going on in the CBI Court of Dehradun.
Furthermore, the Vigilance Section had informed in their office letter dated 29.10.2018 that the copy of the correspondence held between the CBI and the Member (P & V) of CBEC, New Delhi was available with their office but the CBI had mentioned categorically in the said letter dated 18.04.2016 that in case any Applicant seeks copy of the CBI report under the RTI Act, 2005, the CPIO or the Appellate Authorities should ascertain the views of the CBI as per Section 11 of the RTI Act, 2005. Furthermore, it was explained that the information sought was related to a third party and could not be given without following the procedure under Section 11 of the RTI Act, 2005. Accordingly, the consent of the Third Party in the subject case i.e., the CBI, Dehradun had been informed vide letter dated 29.10.2018 about the instant hearing before the Commission. Furthermore, the CBI vide letter dated 19.02.2016 informed the Appellant that the information sought in the RTI application was not available in the office records of the Vigilance Section of the CGST Commissionerate, Dehradun. Furthermore, the reliance was placed on the decision of the Commission in Appeal No. CIC/CBECE/A/2017/182212-BJ dated 11.08.2017, Appeal No. CIC/AT/A/2007/0007, 10 & 11 in the case of Shankar Sharma & Others vs. DGIT, and in Appeal No. CIC/AT/A/2006/00039 in the case of Govind Jha vs. Army HQs dated 01.06.2006 to substantiate their claim. Hence, as per the provisions of Section 8(1) (h) of the RTI Act, 2005, an exemption was claimed stating that the disclosure on information would impede the process of investigation or apprehension or prosecution of offenders and therefore, before completion of the departmental enquiry as well as trial of the Appellant by the CBI Court in their subject case, the documents desired could not be provided to him.
Page 2 of 4The Commission referred to the definition of information u/s Section 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged Page 3 of 4 to give any reasons as to why he had taken such a decision in the matter which was before him."
As regards the exemption claimed u/s 8 (1) (h) of the RTI Act, 2005, the Commission referred to decision of K.S. Prasad Vs SEBI, CIC/AT/A/2007/007/00234 wherein it had been held as under:
"...as soon as an investigation or an enquiry by a subordinate Enquiry Officer in Civil and Administrative matters comes to an end and, the investigation report is submitted to a higher authority, it cannot be said to be the end of investigation. ... which can be truly said to be concluded only with the decision by the competent authority."
In this context a reference can be made to the decision of the bench of the Commission in Shri Arun Kumar Agrawal v. SEBI CIC/SM/A/2012/000196 dated 28.11.2014 wherein it was held as under:
"15. In the present case, final orders are yet to be passed by the competent authority under the SEBI Act. Therefore, the process of investigation against the RIL is still pending before SEBI and it cannot be said the same has reached its conclusion. Hence, the requested information falls under exemption under section 8(1) (h) of the Act.
16. The Commission recognizes the perspective brought out on public interest in the course of the hearing. The appellant had underlined emphatically the dimensions of public interest overriding the protected interest, i.e. the protection given to the 'fiduciary' elements. However, the other side argued that the appellant is overstating the public interest without taking into account that the investigation is still going on. We have, therefore, to await the completion of this investigation. It will not be wise for the Commission to speculate as to what conclusions the SEBI will draw."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the detailed explanation offered by the Respondent, no further intervention of the Commission is required in the matter.
The Appeal stands disposed accordingly.
Bimal Julka (िबमल जु का)
Information Commissioner (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 02.11.2018
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