Central Information Commission
D Thamizhmani, vs Union Public Service Commission on 10 March, 2021
Author: Saroj Punhani
Bench: Saroj Punhani
के ीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/UPSCM/A/2019/124529
D Thamizhmani अपीलकता /Appellant
......अपीलकता
VERSUS
बनाम
CPIO
Union Public Service Commission,
RTI Cell, Sangh Lok Seva Ayog,
Dholpur House Shahjahan Road,
New Delhi 110069.
CPIO
M/o. Communication, Deptt. Of
Telecom, RTI Cell, 20, Ashoka
Road, Sanchar Bhawan, New
Delhi-110001 .... ितवादीगण /Respondent(s)
Date of Hearing : 10/03/2021
Date of Decision : 10/03/2021
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 04/02/2019
CPIO replied on : 15/02/2019& 23/04/2019
First appeal filed on : 08/03/2019
1
First Appellate Authority order : 08/04/2019
2nd Appeal/Complaint dated : 15/05/2019
Information soughtand background of the case:
The Appellant filed RTI application dated 04.02.2019 seeking information as under;
"1. The coy of the letter of DoT Letter in which the advice of UPSC sought ( the views of the DA as expressed in letter by the DA- Disc authority seeking advice of UPSC is required .
2. The complete file noting of UPSC leading to issue of advice dated 21/7/2011 issued by Mr /Ms Ratna Lalitha DS(S-I )dealing with Disciplinary proceedings of Shri D. Thamizhmani under Rule 14 of CCS (CCA) Rules 1965 to Secretary DoT , New Delhi
3. As the Consultation with UPSC is first, to give an assurance to the Services that a wholly independent body, not directly concerned with the making of orders adversely affecting public servants, has considered the action proposed to be taken against a particular public servant with an open mind and secondly, to afford the Government unbiased advice and opinion on matters vitally affecting the morale of public servants, whether the above said case is examined by UPSC with an one mind by going through all the relevant documents including the tentative view of DA on the matter . If so the copy of the tentative view of the DA submitted to CVC and in turn the CVC advice over the said tentative view of DA, as submitted by the DA to UPSC while seeking advice is required please."
The CPIO, UPSC furnished a reply to the appellant on 15.02.2019 against point Nos. 1 & 2.
The CPIO, Deptt. Of Telecommunications furnished the point-wise reply to the appellant on 23.04.2019 Being dissatisfied, the appellant filed a First Appeal dated 08.03.2019. FAA's order dated 08.04.2019 directed the CPIO to forward the RTI application dated 04.02.2019 and appeal dated 08.03.2019 of the appellant to the appropriate Public Authority/CPIO, in terms of Sub-section 6(3) of the RTI Act, 2005.
2Feeling aggrieved and dissatisfied with the non-receipt of the desired information, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through audio conference.
Respondent No.1: B K Mahanta, Deputy Secretary & CPIO, Sandeep Kumar, ASO & Representative of CPIO UPSC present through intra video conference.
Respondent No.2: Anju Lata, Director & CPIO D/o Telecommunication present through audio conference.
The Appellant stated that he is aggrieved with the denial of information sought for at point no.2 of the RTI Application as he has sought for file noting(s) pertaining to his own case. He further stated that on point no.3 of the RTI Application he has not been provided with the desired information as the UPSC and DoT are shifting the onus of providing the information.
Respondent No.1 submitted that the information sought for at point no.2 of the RTI Application has been denied to the Appellant under Section 8(1)(e), (j) and (g) of the RTI Act. He further stated that a number of cases (LPA No. 25/2014, 26/2014, 29/2014, 47/2014, 51/2014, 101 & 102/2014 titled as UPSC vs. K L Minhas) filed by UPSC before the Hon'ble Delhi High Court are pending on the issue of whether file noting(s) on the file of UPSC and correspondence between UPSC and other departments seeking its advice can be accessed by officials to whom such advice relates to. He furthermore referred to certain earlier decisions of the Commission wherein the said submission of UPSC has been upheld by various coordinate benches. He furthermore stated that as regards point no.3 of the RTI Application a factual reply was provided to the Appellant.
Respondent No.2 also reiterated their reply to point no.3 of the RTI Application.
Decision The Commission observes from a perusal of the facts on record that the information sought for at point no.3 of the RTI Application is rather based on conjecture and does not conform to Section 2(f) of the RTI Act. For the said 3 reasons, the reply provided by the Respondents to point no.3 of the RTI Application is not being called into question.
Further, with respect to point no.2 of the RTI Application, this bench of the Commission relies upon a decision dated 15.05.2019 of a coordinate bench in File No. CIC/UPSCM/A/2017/169812/SD, wherein the same question law was addressed and the following was held:
"Commission observes from the perusal of facts on record that the instant case is squarely covered by the ratio laid down by 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] on 07.10.2010 wherein following was the issue for adjudication:
'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 4 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.
5. Ms. Maneesha Dhir, learned counsel for the Petitioner reiterated the submissions made before the CIC and supported the order of the CPIO and the Appellate Authority. She again referred to Section 8(1)(e), 8(1)(g) and 8(1)(j) of the RTI Act, 2005 and submitted that the information sought was covered under each of these provisions and was therefore exempt from disclosure. It was submitted that notings on files do not fall within the definition of information under Section 2(f) RTI Act, 2005.....' The Court held as under:
'9. Unless file notings are specifically excluded from the definition of Section 2(f), there is no warrant for proposition that the word „information‟ under Section 2(f) does not include file notings.
10. The next submission to be dealt with is that information contained in the files in the form of file notings made by the different officials dealing with the files during the course of disciplinary proceedings against the Petitioner were available to the Union of India in a „fiduciary relationship‟ within the meaning of Section 8(1)(e) of the RTI Act. This Court concurs with the view expressed by the CIC that in the context of a government servant performing official functions and making notes 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.
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 5 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)
14. In the considered view of this Court, the Union of India cannot rely upon Section 8(1)(e) of the RTI Act, 2005 to deny information to the Petitioner in the present case.
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 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.6
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.' Without prejudice to the averred stay order of Hon'ble Delhi High Court in LPA No. 25/2014 and connected matters, this bench of the Commission is of the considered opinion that denial of the file noting(s) sought in the instant RTI Application under Section 8(1)(e), (j) and (g) of RTI Act is not appropriate in light of the ratio laid down by Hon'ble Delhi High Court in the matter of Union Of India vs. R.S.Khan (supra)."
Adverting to a square application of the aforesaid decision in the facts of the instant case, the Commission directs the CPIO to provide the available information as sought for at point no.2 of the RTI Application to the Appellant. In doing so, considering the applicability of Section 8(1)(j) & (g) of the RTI Act for the information related to any third party or names of the officers who have tendered their comments/remarks and noting(s), the CPIO is directed to redact the names and identifying particulars of such other third parties and officers, that may figure in the relevant records. Additionally, information related to any other party that may figure in the records may also be redacted before providing the file noting(s) to the Appellant.
The information as directed above shall be provided free of cost to the Appellant within 15 days from the date of receipt of this order under due intimation to the Commission.
7The appeal is disposed of accordingly.
सरोजपुनहािन) Saroj Punhani (सरोजपु हािन सूचनाआयु ) Information Commissioner (सू Authenticated true copy (अिभ मािणतस यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / D Thamizhmani, 8