Central Information Commission
Anil Kumar Kv vs Indian Army on 23 August, 2021
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
Anil Kumar KV vs. CPIO, HQ MG & G Area
के यसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग, मुिनरका
Baba GangnathMarg, Munirka
नई द ली, New Delhi - 110067
File No :CIC/IARMY/A/2018/164490 +
CIC/IARMY/A/2018/164491 +
CIC/IARMY/A/2018/164493 +
CIC/IARMY/A/2018/164494 +
CIC/IARMY/A/2018/164497 +
CIC/IARMY/A/2018/164498 +
CIC/IARMY/A/2018/164561
Anil Kumar KV ....अपीलकता/Appellant
VERSUS
बनाम
CPIO,
HQ MG & G Area,
PIN-908806,
C/O 56 APO .... ितवाद गण/Respondent
RTI application(s) filed on : 28/05/2018
CPIO replied on : 25/06/2018
First appeal(s) filed on : 03/07/2018
First Appellate Authority order : 25/08/2018
Second Appeal(s) dated : 15/10/2018
Date of Hearing : 08/07/2020, 17/08/2021
Date of Interim Decision/Final : 17/07/2020, 19/08/2021
Decision
1
Anil Kumar KV vs. CPIO, HQ MG & G Area
सूचनाआयु : द य काशिस हा
INFORMATION COMMISSIONER: DIVYA PRAKASH SINHA
Note: The above referred cases have been clubbed for decision to avoid
multiplicity of proceedings as these are based on the same subject matter. It
may be noted that these cases have been clubbed based on Appellant's request
during the hearing held with respect to three of the seven cases inFile Nos.
CIC/IARMY/A/2018/164491 + 164493 + 164494.
Information sought:
File No: CIC/IARMY/A/2018/164490 The Appellant sought thedirections of Convening Authority, HQ MG & G Area to his Commanding Officer at Brigade of the Guards Regimental Centre to sign the Charge Sheet.
File No: CIC/IARMY/A/2018/164491 The Appellant sought Report on Application for Trial (MT) on the Summary of Evidence conducted in his respect, forwarded by HQ Southern Command to HQMG&GArea.
File No: CIC/IARMY/A/2018/164493 The Appellant sought copy of all documents forwarded along with Summary of Evidence by Brig DV Singh, Commandant GUARDS Regiment Centre to HQ MG & G Area (Convening Authority of GCM in his respect at GUARDS Regimental Centre) including communication, recommendations, applications, brief etc. File No: CIC/IARMY/A/2018/164494 The Appellant sought copy of all documents of the said Court of enquiryin terms of (a) Findings, (b) Opinion, (c) Recommendations, (d) Directions, (e) Directions of appropriate authority for the Court of Inquiry to record its findings and opinion.
File No: CIC/IARMY/A/2018/164497 The Appellant sought copy of all documents in terms of (a) Findings, (b) Opinion,
(c) Recommendations, (d) Directions of the reassembled Court of Inquiry held at HQ MG & G Area vide convening order 391/Misc/Gen/A1 dated 19 Oct 2016.
File No: CIC/IARMY/A/2018/164498 2 Anil Kumar KV vs. CPIO, HQ MG & G Area The Appellant sought copy of Note Sheet(s) or letter by which HQ MG & G Area Convening Order No. 391/Misc/Gen dated 21.10.2015 was cancelled and 391/Misc/Gen/A2 dated 21.10.2015 was ordered. File No : CIC/IARMY/A/2018/164561 The Appellant sought copy of Note Sheet No. 402607/GCM/KV/DV-1 on which GOC, HQ MG & G Area has ordered for conduct of GCM against him.
Grounds for the Second Appeal(s):
The CPIO has not provided the desired information.
Relevant Facts emerging during Hearing in File Nos. CIC/IARMY/A/2018/164491 + 164493 + 164494:
The following were present:-
Appellant: Represented by Pradeep Aggarwal, Advocate through VC.
Respondent: Brig. Arun Nair, Brig(Adm) & CPIO, Col.Rajdeep Singh Reen, Col.GS & PIO and MajRituRaghav, APIO, HQ MG & G Area, PIN-908806, C/o 56 APO present on phone.
Rep. of the Appellant stated that CPIO has arbitrarily invoked Army Regulations fordenying the information sought in these cases. He further stated that based on the Summary of Evidence carried out against the Appellant, a General Court Martial wasordered, however, Appellant has been provided with documents limited to statements of Witness and Exhibits. He further submitted that these limited documents do not have any material to suggest for a trial and neither application for trial has been forwarded nor the summary of evidence forwarded to higher authorities has been supplied. That, it is in this context that Appellant has sought for the concerned documents through the channel of RTI Act to know as to how the Convening Authority has decided to go ahead with the trial.
Upon Commission's remark that Section 22 of RTI Act has an overriding effect on Army Regulations, CPIO tendered his unconditional apology and submitted that they desired to invoke Section 8 (1)(h) of the RTI Act for denying the information, however, inadvertently invoked Army Regulations. He further submitted that since GCM against Appellant was pending investigation, and documents sought 3 Anil Kumar KV vs. CPIO, HQ MG & G Area are directly related to the investigation, disclosure of the same would impede the process of investigation.
Rep. of the Appellant interjected to state that there are a catena of precedents wherein it has been held that exemption of Section 8(1)(h) of the RTI Act cannot be invoked without substantial justification.
At this point, APIO submitted that the information sought contains documents which are confidential in nature like legal opinion received from the office of DJAG and therefore cannot be disclosed.
Keeping in view the apparent ignorance of the Respondent regarding the provisions of RTI Act, Commission apprised the CPIO and other representatives that "confidentiality" is not an exemption under RTI Act.
APIO was quick to apologize and sought to correct her statement and submitted that the legal opinion etc.is held by the Respondent office in a fiduciary capacity and therefore disclosure of the same would have impeded the process of investigation.
Interim Decision Commission is gravely irked by the sheer ignorance regarding the provisions of RTI Act displayed by the CPIO and other representatives of the Respondent office in the instant matter. In a strict sense, the reply provided by the CPIO in the three cases that were heard as well as in File No.CIC/IARMY/A/2018/164490 and CIC/IARMY/A/2018/164497(clubbed with this matter as per above mentioned note) is liable to be summarily rejected for want of any relevant exemption clause of RTI Act invoked by CPIO.Here, it is pertinent to mention that in the remaining two clubbed cases referred above i.e. in File Nos.CIC/IARMY/A/2018/164498 andCIC/IARMY/A/2018/164561, CPIO has invoked Section 8(1)(h) of RTI Act to deny the information.
Now, in keeping with the principles of natural justice, Commission is affording one last opportunity to the Respondent to justify the denial of information as per Section 19(5) of RTI Act with respect to the prescribed exemption clauses of Section 8 of RTI Act in a composite manner for all the seven cases referred herein above.CPIO shall note that Section 19(5) of RTI Act provides as under:
4Anil Kumar KV vs. CPIO, HQ MG & G Area "In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request." Commission also takes into consideration the fact that Appellant has sought to argue against the denial of information in a detailed manner.
In view of the totality of circumstances discussed above, Commission directs the CPIO to send his written submission justifying the denial of information in each of the instant cases under the relevant exemption clauses of Section 8 of RTI Act within 15 days from the date of receipt of this order. CPIO will ensure service of a copy of his written submissions to the Appellant and send the proof of service to the Commission. Appellant may send his counter submissions, if any, within 15 days from the date of receipt of CPIO's submissions.
Registry attached with this bench is directed to send to the Respondent copy of the additional four Second Appeals that have been clubbed in this order i.e. File Nos. CIC/IARMY/A/2018/164490+164497+164498+164561.
The appeal(s) are reserved for final order.
Sd/-
DivyaPrakashSinha( द य काशिस हा) Information Commissioner(सूचनाआयु ) 5 Anil Kumar KV vs. CPIO, HQ MG & G Area Date of Hearing: 17/08/2021 Date of Decision: 19/08/2021 The following were present:
Appellant: Not present Respondent: Major Ritu Raghav, PIO, heard over phone.
Submissions made by Appellant and Respondent during Hearing: The appellant was not present to plead his cases.
The PIO submitted that since the hearing notice was forwarded to her only yesterday, she could not prepare herself for the hearing and the concerned CPIO who had handled the RTI application is also on leave. She requested that she may be given some time to file her written submissions in the cases. The Commission accepted the request of the PIO and she was directed to send her written submissions within a day after the hearing was concluded.
On receipt of the written submissions from the PIO, it has been stated that since disciplinary proceedings against the appellant were underway at the time of the initial reply, some part of the information was denied under the relevant provisions of the RTI Act. She has further informed that on 10.10.2020, the GCM proceedings got over and punishment was awarded to the appellant. Thereafter, complete GCM proceedings alongwith all the relevant exhibits, advise of Judge Advocate and findings of the Court martial were handed over to the officer on the same day the decision was taken, as per the procedure. It has been also stated that at the time of passing of the interim order by the Commission on 17.07.2020, the disciplinary proceedings were underway. Accordingly certain information was denied to the appellant. She also informed that the officer has returned back to his Unit and now that complete GCM proceedings were given to him, there is no further information that can be disclosed as other such documents have been marked as CONFIDENTIAL, being purely internal communications between the higher authorities and which is held in fiduciary relationship.6
Anil Kumar KV vs. CPIO, HQ MG & G Area Observations:
Having perused the written submissions of the PIO, it is noted that whatever information could have been disclosed to the appellant under the provisions of the RTI Act, the same has been done soon after the GCM proceedings were over. For the rest of the information which includes a copy of Note Sheet on which GOC, HQ MG & G Area has ordered for conduct of GCM, a copy of Note sheet by which convening order dated 21.10.2015was cancelled, etc. the information is rightly denied u/s 8(1)(e) of the RTI Act. Hence, no further relief can be given to the appellant.
Having said so, this fact cannot be disputed that during the last hearing, the CPIO who attended the hearing failed to justify the exemptions claimed by him for denying the information. The Commission therefore advises the concerned CPIO to come thoroughly prepared for the hearings in future and also to take note of the fact that whenever any information is denied under one of the clauses of Section 8 of the RTI Act, the said clause should be mentioned and a proper justification is to be given as the onus to prove that a denial of a request was justified is on the CPIO. Also to avoid such a situation henceforth, it is incumbent that the respondent Public Authority conducts training workshops on the RTI Act for its employees, dealing with RTI matters.
Decision:
In view of the above, the Commission accepts the written submissions of the PIO and does not find any scope for further intervention in the matter. The Commission also instructs the GOC HQ MG & G Areato convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of their duties and responsibilities. The CPIO is directed to serve a copy of this order to the GOC, HQ MG & G Area for his information and necessary action.
The appeals are disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना) Information Commissioner (सूचना आयु ) 7 Anil Kumar KV vs. CPIO, HQ MG & G Area Authenticated true copy (अिभ मािणत स यािपत ित) A.K. Assija (ऐ.के . असीजा) Dy. Registrar (उप-पंजीयक) 011-26182594 / दनांक/ Date Copy to:
GOC, HQ MG & G Area, PIN-908806, C/O 56 APO 8