Central Information Commission
Smt. Adarsh Sharma vs Border Security Force on 10 August, 2011
Appeal No.CIC/WB/A/2010/000341/SS
CENTRAL INFORMATION COMMISSION
D- Wing, 2nd Floor,
August Kranti Bhavan, Bhikaji Cama Place,
New Delhi - 110066
Appeal No.CIC/WB/A/2010/000341/SS
PARTIES TO THE CASE:
Appellant : Smt. Adarsh Sharma
Respondents :
1. Ministry of Home Affairs (Foreign Division), Intelligence Bureau, Govt. of
India, New Delhi
2. Bureau of Immigration, Intelligence Bureau, New Delhi
Date of Hearing : 20/07/2011
BACKGROUND OF THE CASE:
1. The present matter was scheduled for hearing before the Commission on 20/07/2011 at 1200 hours. The Appellant, Smt. Adarsh Sharma could not be present in person but was represented through her son, Shri Ashok Kumar Sharma. Shri Anuj Sharma, Director (I & C) & CPIO, MHA (Foreign Division) had expressed his inability to personally attend the hearing due to some prior engagement in connection with a Parliamentary Standing Committee meeting on the date of present hearing; hence the Respondent 1 Appeal No.CIC/WB/A/2010/000341/SS No.1 was represented through Shri S.N. Garg, Under Secretary, MHA. Shri R.K. Vashistha, Assistant Director, IB had appeared on behalf of Respondent No.2 on the said date of hearing.
2. The Appellant vide her RTI Application dated 26/11/2009 had sought certain information in the nature of migration details of one Dr. Vijay Kumar Vyas from the CPIO of Immigration Department of Ministry of Home Affairs. The concerned CPIO however transferred the RTI Application under Section 6 (3) of the RTI Act to Respondent No.2 on 04/12/2009 with intimation to the Appellant as well. On 09/12/2009, the Appellant wrote to the Respondent No.1 seeking same information as was sought earlier through her RTI Application dated 26/11/2009. The CPIO of the Respondent No.1 vide his Order dated 21/12/2009 transferred the RTI Application under Section 6 (3) of the RTI Act to the CPIO of Respondent No.2.
3. Finally, the CPIO of Respondent No.2 vide his Order dated 29/12/2009 disposed of the Appellant's RTI Application stating that by virtue of Section 24 (1) of the RTI Act and the Second Schedule therein, the Intelligence Bureau was exempted from disclosing any information to the Appellant in respect to her RTI Application. The FAA of the Respondent No.2 vide his Order dated 04/02/2010 simply upheld the Order of its CPIO stating further that the issues raised by the Appellant in her RTI Application did not 2 Appeal No.CIC/WB/A/2010/000341/SS involve corruption or human rights violations on the part of the Respondent No.2 and thus, information could not be provided to the Appellant under Section 24 (1) r/w Second schedule of the RTI Act. Hence, the Appellant has preferred second appeal under the RTI Act to the Commission. DECISION NOTICE:
4. The Commission has carefully perused through the material placed on record and has considered the submissions made by all the parties during the hearing.
5. It is pertinent at this juncture to succinctly mention the facts which are crucial to the present appeal while addressing the contents of the said RTI Application. On 26/08/2009, a notice was served upon one Dr. Vijay Kumar Vyas at his residential address by the Hon'ble High Court of Rajasthan, Jaipur Bench in Special Appeal (Civil) No.54/88. The Appellant is a party to that Special Appeal. The Hon'ble Court then appointed an Officer to serve the said notice upon Dr. Vijay Kumar Vyas.
6. A written note dated 03/09/2009 duly signed by the authorized officer of the Court has been produced before the Commission and placed on record by the Appellant. The appointed Officer of the Court, having expressed his inability to successfully trace out Dr. Vijay Kumar Vyas in order to serve the 3 Appeal No.CIC/WB/A/2010/000341/SS Court's notice on him, had observed in writing that the relatives of Dr. Vijay Kumar Vyas had refused to accept the service of notice on his behalf and had informed the Officer that Dr. Vijay Kumar Vyas was no longer alive.
The Court's officer further stated in his written note that none of the relatives gave any written affidavit or document to authenticate their statements.
7. Thereafter, the Appellant through her RTI Application dated 26/11/2009 and the continuing letter dated 09/12/2009 had written to the Respondent No.1 alleging that Dr. Vijay Kumar Vyas, who was earlier declared dead by the Court's appointed Officer to the best of his knowledge and belief vide his written note dated 03/09/2009, had departed from India for Auckland, New Zealand via Flight No.CX708 on 10/10/2009 on Passport No. H-0980681. The Appellant had brought such findings to the attention of the Respondent No.1 and had sought a final declaration on this matter from the Respondent No.1 after ascertainment of the allegations made by her in reference to Dr. Vijay Kumar Vyas.
8. Section 24 of the RTI Act reads as follows:
"24. Act not to apply to certain organizations -
(1) Nothing contained in this Act shall apply to the intelligence and security organizations specified in the Second 4 Appeal No.CIC/WB/A/2010/000341/SS Schedule, being organizations established by the Central Government or any information furnished by such organizations to that Government:
Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section:
Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission, and notwithstanding anything contained in section 7, such information shall be provided within forty-five days from the date of the receipt of request."
9. According to the Black's Law Dictionary (West 9th ed. 2009 on p.86), the word "Allegation" has been defined as "1. The act of declaring something to be true. 2.Something declared or asserted as a matter of fact, esp. in a legal pleading; a party's formal statement of a factual matter as being true or provable, without its having yet been proved." Thus, an allegation is clearly different from "Conjecture" which has been defined (on p.343) as a guess, supposition or surmise. The true intention of having Proviso (I) to Section 5 Appeal No.CIC/WB/A/2010/000341/SS 24 (1) of the RTI Act is to bring even the exempted intelligence and security organizations as specified in Second Schedule of the RTI Act within the scope and ambit of the RTI Act so far as allegations of corruption supported with cogent and reasonable legal evidence are concerned.
10. In the opinion of the Commission, the written note dated 03/09/2009 duly signed by the Officer appointed by the Hon'ble Rajasthan High Court, Jaipur Bench is sufficiently reasonable evidence on the basis of which the allegations made by the Appellant could be considered as being probably true. The Appellant has placed before this Commission copy of the document titled 'Application for Abatement of Appeal' filed by the Respondent in the Special Civil Appeal No.54/1988. It is seen from perusal of the document that the Respondents Nos. 1 to 4 in that Civil Appeal have deposed before the Hon'ble Court that Dr. Vijay Kumar Vyas (who is Respondent No.5 in that same civil appeal) was already dead. Thus, the legal evidence on the basis of which the Appellant is making allegations is strong as well as sufficiently reasonable to probe into.
11. Now, notwithstanding the fact that the Respondent No.2 is an exempt organization under Section 24 (1) of the RTI Act, it is nevertheless the duty of Respondent No.2, as an intelligence and security organization, to inquire into the allegations made by the Appellant in this case. Not discharging its 6 Appeal No.CIC/WB/A/2010/000341/SS duty would tantamount to 'Nonfeasance', i.e. the omission of acts which a man was by law bound to do. The following excerpt from the Judgment of Division Bench of the Hon'ble Gujarat High Court in Union of India (UOI) and Ors. Vs. V. Shankaran and Anr. [2008 (4) GLT 885] is of relevance here:
"25. [...]"Official misconduct" defines in Black's Law Dictionary (7th Edition) as a public officer's corrupt violation of assigned duties by malfeasance; misfeasance; or nonfeasance, which is also termed as misconduct in office; misbehaviour in office; malconduct in office; misdemeanour in office; corruption in office and official corruption."
12. Thus, if the Intelligence Bureau simply refuses to take cognizance of allegations which are clearly based on reasonably sound legal evidence and omits to probe into such allegations when it was lawfully bound to do so, then such nonfeasance clearly amounts to an act of Corruption. If the nonfeasance results in allowing some allegedly dead person named Dr. Vijay Kumar Vyas to escape from being brought to justice in a pending legal proceeding involving him before the Hon'ble High Court of Rajasthan, then it will amount to corrupt practice on part of Respondent No.2. Thus, unless the Respondent No.2 inquires into the truthfulness of the Appellant's 7 Appeal No.CIC/WB/A/2010/000341/SS allegations with respect to the status of Dr. Vijay Kumar Vyas, it will clearly appear as if the Respondent No.2 has indulged in corrupt practices.
13. Thus, the facts and circumstances of the present case squarely attract the Proviso (I) to Section 24 (1) of the RTI Act and the information sought by the Appellant clearly relates to such information which pertains to allegation of corruption against the Respondent No.2.
14.In light of the above observations, reasoning and findings, the Commission hereby directs the CPIO of the Respondent No.2 to provide information to the Appellant as to whether at all Dr. Vijay Kumar Vyas (alleged to be dead) departed from India for Auckland, New Zealand via Flight No.CX708 on 10/10/2009 on Passport No. H-0980681. The information shall be furnished within 20 days of receiving this Order.
15. With the above observations and findings, the present Appeal is accordingly allowed.
Sushma Singh Information Commissioner 10.08.2011 Authenticated True Copies K.K. Sharma OSD & Deputy Registrar 8 Appeal No.CIC/WB/A/2010/000341/SS Name & Address of Parties:
Smt. Adarsh Sharma, W/o Late Dr. M.C. Sharma, Gayatri Bhawan, 9 Hospital Road, C.Scheme, Jaipur - 302 001 The PIO/CPIO, Intelligence Bureau, Ministry of Home Affairs, Foreigners Division, Jaisalmer House, 26, Man Singh Road, New Delhi The PIO/CPIO, Bureau of Immigration, Intelligence Bureau, East BlockVIII, Sector - 1, R.K. Puram, New Delhi The Appellate Authority, Intelligence Bureau, Ministry of Home Affairs, Foreigners Division, Jaisalmer House, 26, Man Singh Road, New Delhi 9