Central Information Commission
S C Chauhan vs Union Public Service Commission on 17 May, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/UPSCM/A/2017/169812/SD
S C Chuahan ....अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Union Public Service Commission,
Dholpur House,
Shahjahan Road,
New Delhi - 110069. ... ितवादीगण /Respondent
RTI application filed on : 18/07/2017
CPIO replied on : 10/08/2017
First appeal filed on : 18/08/2017
First Appellate Authority order : Date not mentioned
Second Appeal dated : 03/10/2017
Date of Hearing : 15/05/2019
Date of Decision : 15/05/2019
Information sought:
The Appellant sought certified copies of notesheet(s) and correspondences etc. related to disciplinary action initiated against him under CVC reference OM No. 014/W&H/005-312793 dated 25.04.2016 and Mo Urban Development reference no. 1/48/DII/2016/AV.III M/o UD (AV Unit).
Grounds for the Second Appeal:
The CPIO has not provided the desired information on para 1 of the RTI Application.
Relevant Facts emerging during Hearing:
The following were present:-1
Appellant: Present in person.
Respondent: Virendra Singh, DS & CPIO, Murari Kumar, SO and Anil Kr. Rijhwam, ASO, Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi present in person.
Appellant stated that he is aggrieved with the denial of information as he has sought for file noting(s) pertaining to his own case.
CPIO submitted that the file noting(s) has been denied under Section 8(1)(e), (j) and (g) of 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.
Decision 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 2 File No : CIC/UPSCM/A/2017/169812/SD 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 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 3 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 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) 4 File No : CIC/UPSCM/A/2017/169812/SD
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.
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).
In view of the foregoing, Commission directs the CPIO to provide available and relevant information as sought on para 1 of the RTI Application to the Appellant free of cost within 15 days from the date of receipt of this order. A compliance report to this effect be duly sent to the Commission by the CPIO.
5The appeal is disposed of accordingly.
Divya Prakash Sinha ( द काश िस हा )
Information Commissioner ( सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
Haro Prasad Sen
Dy. Registrar
011-26106140 / [email protected]
हरो साद सेन, उप-पंजीयक
दनांक / Date
Signature Not Verified
Digitally signed by User
Date: 2019.05.17 14:36:04 IST
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