Central Information Commission
Shri Amarjeet Singh vs Directorate General Of Vigilance ... on 16 March, 2010
CENTRAL INFORMATION COMMISSION
.....
F.No.CIC/AT/A/2009/000821
Dated, the 16th March, 2010.
Appellant : Shri Amarjeet Singh
Respondents : Directorate General of Vigilance Customs & Central
Excise This matter was heard partly through videoconferencing (VC) on 21.01.2010 in the presence of both parties. Appellant was present at NIC VC facility at Chandigarh, while the respondents represented by Shri Avinash Pushkarna, Joint Commissioner & Appellate Authority and Shri Rohit Singhal, Deputy Commissioner & CPIO were present at the Commission's New Delhi office, from where the Commission conducted its hearing.
2. Presently, four queries, viz. Sl.Nos.i, ii, v and vii appearing in appellant's RTI-application dated 24.03.2009 are subjects of this second-appeal. These queries read as follows:-
"i. Copy of UO Note of Directorate of Vigilance sent to CVC seeking first stage advice in respect of Amarjeet Singh and Sh. D.S.Sra.
ii. Copy of UO Note of Directorate of Vigilance seeking reconsideration of CVC advice in respect of Sh. D.S.Sra. v. Copy of Comments of Directorate of Vigilance (DOV) on the replies / representations / letters filed by Shri D.S. Sra. vii. Comments of the Directorate of Vigilance on the above mentioned reply / written statement of defence of Sh.D.S.Sra."
3. Given the nature and the content of the queries at Sl.Nos.i and ii, CPIO is directed to consult CVC and take a decision about disclosing this information in the light of the advice tendered by CVC and CPIO's own consideration of the provisions of the RTI Act. This may be finalized within four weeks of the receipt of this order.
4. In queries at Sl.Nos.5 and 7 what appellant has solicited is information relating to a vigilance enquiry against a third-party Mr.D.S.Sra. It is his point that he and Shri D.S. Sra were both proceeded against in the same matter and the file relating to both proceedings was common. In spite of this, while the proceedings AT-16032010-05.doc Page 1 of 6 against Shri D.S. Sra were dropped, the one against appellant was pursued and continued. According to the appellant, it was discriminatory, which entitled him to know why in the same matter, enquiry against one person was dropped, but another was continued.
5. Respondents stated that it was true that both these enquiries were part of the same file as they related to the same matter but it was wrong for the appellant to assume that the weight of evidence in both cases and share in culpability was identical. One case was dropped while the other was continued on the basis of available evidence and the extent of the involvement of the officers in the irregularities. It was their case that since the enquiry against the appellant was currently on, any attempt by him to access the file independent of the decision of the Enquiry Officer would amount to impeding the process of the enquiry and hence would attract Section 8(1)(h) of the RTI Act.
6. Respondents have further argued that Commission, in its earlier decisions in Dr.G.Sreekumar Menon Vs. DGV Customs & Central Excise; Appeal No.CIC/AT/A/2008/00918; Date of Decision: 27.11.2008 and R.K. Singh Vs. DGV Customs & Central Excise; Appeal No.CIC/AT/A/ 2008/00222; Date of Decision: 30.06.2008 had directed that vigilance enquiry reports were not to be disclosed when an enquiry based upon that report was in progress.
7. Appellant pointed out that he had attempted to seek from the Enquiry Officer for the disciplinary proceedings against appellant the documents he has now sought under the RTI Act. The Enquiry Officer declined appellant access to these documents.
8. Appellant's point is that as the case against Shri D.S. Sra has been admittedly closed, respondents could not cite the exemption under Section 8(1)(h) in denying to the appellant the above information.
9. On an overview of this entire case, I do not find respondents' contention persuasive that information as regards the proceedings against Shri D.S. Sra should be declined to be disclosed even if that proceeding is now known to be closed, simply because a concurrent proceeding against the appellant himself in the same matter and in the same file is current. As has been pointed out by Justice Sanjeev Khanna of the Delhi High Court in Addl. Commissioner of Police (Crime) Vs. Central Information Commission & Another in W.P. (C) No.7930/2009; Date of Decision: 30.11.2009, Section 8(1)(h) of RTI Act does not have any permanent application to a class of cases for disclosure of AT-16032010-05.doc Page 2 of 6 information, but must be applied to each case for assessing whether disclosure was warranted. One key-element in all such disclosure- requests was whether the proceeding was current or it was over. Once a proceeding is concluded, the information therein no more attracts Section 8(1)(h) because its disclosure cannot impede the process of enquiry or investigation. The Delhi High Court in the above-referred order has laid-down the law of disclosure in such matters. In the words of Justice Sanjeev Khanna, "This Section does not provide for a blanket exemption covering all information relating to investigation process and even partial information wherever justified can be granted. Exemption under Section 8(1)(h) necessarily is for a limited period and has a end point i.e. when process of investigation is complete or offender has been apprehended and prosecution ends. Protection from disclosure will also come to an end when disclosure of information no longer causes impediment to prosecution of offenders, apprehension of offenders or further investigation."
10. From that standpoint, the information at Sl.Nos.5 and 7 of appellant's RTI-application dated 24.03.2009 should be disclosed.
11. But, this matter needs also to be examined from another angle, i.e. Section 8(1)(j) of the RTI Act. There would be no difficulty in applying the law expounded by the High Court to disclosure of information to an applicant in his own matter. But when the information requested belongs to a third-party, the question arises whether it can be treated as 'personal' to that party. For example, in the present case, the applicant and the third-party, Shri D.S. Sra were both departmentally proceeded against for alleged irregularities. The case against, Shri D.S. Sra was closed, but the one against the appellant was continued. Now the appellant wishes to access information relating to the proceeding of the case against Shri D.S. Sra, the third-party.
12. In my view, in matters such as this, where an applicant seeks information relating to an investigation against the third-party, request needs to be examined both under Sections 8(1)(h) and 8(1)(j). The key question is whether the investigation against an employee of a public authority can be described as 'personal' to that employee. There are two opposing viewpoints in this matter. One is that, even if an investigation/enquiry is against an employee of the public authority, it cannot be said to be personal to that employee because the enquiry is essentially an action by the public authority under a statute or Rules. AT-16032010-05.doc Page 3 of 6 Mere fact that such action is directed against an employee, or a group of employees, does not invest the entire process with the characteristics of personal information of that employee or the group. The other view is that an enquiry or an investigation calls in question the conduct and action of an employee and hence is entirely personal to him. It relates to no other person, but that employee and disclosure of any information about that investigation or enquiry would have the impact of impairing the reputation and the standing of the employee. It even has the potentiality to harm that employee in other ways since it can be picked on by his adversaries to cause him harm or handicap in matters such as career-progression, litigation and even social interactions. Further, in terms of the definition of the term 'personal' as found in the Law Lexicon, "the word personal means pertaining to a person or bodily form, of or relating to a particular person; exclusively for a given individual; relating to the person or body; relating to an individual, his character, conduct, motives or private affairs." It is argued that so long as a departmental enquiry/investigation exclusively focuses on a person who happens to be an employee, that enquiry ought to be treated as personal to the employee.
13. The more restrictive view of the meaning of the term 'personal' is that it relates to something which is in the exclusive private domain of an individual. In that sense, a departmental action against its employee cannot be said to be personal because it is not in that employee's private domain. According to this view, 'personal' begins where 'official' ends and the departmental enquiry is all 'official'.
14. From these two positions, a view is to be taken about the meaning of the term 'personal' as appearing in Section 8(1)(j) of the RTI Act.
15. In some of the Commission's earlier decisions, the meaning of the term 'personal' has been taken in the second sense, i.e. everything relating to and personal to an employee even if the action is an official investigation and an enquiry into his conduct. This information is personal to that employee since it excludes the rest of the world.
16. In my view, this position needs revisiting after the decision of Delhi High Court in Writ Petition (Civil) No.8396 OF 2009 in which it was held "Section 8(1)(j) reconciles two legal interests protected by law i.e. right to access information in possession of the public authorities and the right to privacy. Both rights are not absolute or complete. In case of a clash, larger public interest is the determinative AT-16032010-05.doc Page 4 of 6 test. Public interest element sweeps through Section 8(1)(j). Unwarranted invasion of privacy of any individual is protected in public interest, but gives way when larger public interest warrants disclosure. This necessarily has to be done on case to case basis taking into consideration many factors having regard to the circumstances of each case." Therefore, it would be incorrect to say that an official action against the employee of a public authority excludes the rest of the world, because in actual fact, it doesn't. The employee is appointed by the public authority to discharge public functions, and it is the manner of his discharge of the functions which is called in question through enquiries and investigations. Therefore, it relates to overall governance with the public authority as well as its accountability to the larger public for discharging the functions for which the public authority was created. In that sense, the enquiry or investigation against the employee of the public authority ceases to be personal to the employee. Issue of governance and accountability to the public arises.
17. It would, therefore be safe to hold that investigation or enquiry against a third-party employee cannot be brought within the scope of Section 8(1)(j) of the RTI Act.
18. I conclude that an RTI-applicant can seek information not only pertaining to himself in investigation ⎯ ongoing or closed ⎯ but also against a third-party in a similar matter. The request will no-doubt be examined within the scope of the exemption-Sections of the RTI Act as well as Section 11(1) on account of its confidentiality, if any ― such as that arises from action by the public authority under Section 124 of the Indian Evidence Act. But such information ⎯ third-party or otherwise ⎯ cannot be denied only on the ground that it was personal to an employee and that no public interest warranted its disclosure.
19. Thus in the present case, whether looked at from the standpoint of Section 8(1)(h) (impeding the process of investigation) or Section 8(1)(j) (being a personal information to the other party), I do not see any difficulty in authorizing the disclosure of the requested information. I also factored into my analysis in this matter the fact that what the appellant is seeking is information regarding discharge of another officer in a common enquiry which was launched against that officer as well as the appellant. Appellant was not discharged. The canons of justice and prudence would, therefore, dictate that he be allowed access to the material which permitted the public authority to exonerate the third-party, Shri D.S. Sra, but to continue the investigation against the appellant.
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20. It is, accordingly, directed that these four items of information shall be provided to the appellant (after applying Section 10(1) of RTI Act where necessary, such as for protection of informers, witnesses, or source of information attracting Section 8(1)(g)) within two weeks of the receipt of this order by the CPIO.
21. Appeal disposed of with these directions.
22. Copy of this direction be sent to the parties.
( A.N. TIWARI ) INFORMATION COMMISSIONER AT-16032010-05.doc Page 6 of 6