Central Information Commission
Dr. Amitabh Kumar vs Indo-Tibetan Border Police Force ... on 7 January, 2010
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/C/2009/00258 & 259 dated 5-5-2009
Right to Information Act 2005 - Section 18
Complainant: Dr. Amitabh Kumar,
Respondent: Indo-Tibetan Border Police Force (ITBP)
Decision announced: 7.1.2010
FACTS
These are two complaints received from Dr. Amitabh Kumar of Varanasi, U.P. against the Directorate General, ITBP Force, New Delhi:
File No. CIC/WB/C/2009/00259 In an application of 14-3-09 Dr. Amitabh Kumar applied to the CPIO, DG, ITBP seeking the following information:
"1. Kindly intimate the officially stated reason for my suspension on grounds of contemplated disciplinary proceedings, as stated in my Suspension Order No. 1858 dated 7.12.2007.
2. Kindly also intimate the officially stated reason, as to why despite my many applications and reminders including that, dated 18.9.2008, the Department has not intimated the reason for my suspension to me even after more than 15 months of my suspension in a clear violation of instructions of Department of Personnel & A.R. O. M No. 35014/1/81-Ests (A) dated 9.11.1982, which makes it mandatory to intimate the reasons of suspension to an employee, suspended on the grounds of contemplated disciplinary proceedings after expiry of 90 days of his suspension.
3. Kindly intimate as to whether any order regarding subsistence allowance admissible to me during suspension was ever issued, in case an order regarding payment of subsistence allowance was issued at any time thereafter, kindly intimate the officially stated reason for the non communication of the said order regarding admissibility of Subsistence allowance to me, i.e. the concerned employee till date. Kindly also intimate the officially stated reason for not having issued the orders for admissibility of subsistence allowance payable to me.
4. Kindly provide a certified copy of the official comments/ recommendation (if any) made by the then DG, ITBPF Shri V. K. Joshi, IPS on BTC, ITPB faxed letter No. ITBP/BTC/ESTT-3/2007-147 dated 2.10.2007 along with 1 its Annexure letter by Dr. Amitabh Kumar dated 30.9.2007.
5. Kindly intimate whether, any independent and impartial enquiry was conducted into the incidents of Human Rights Violation of 1.10.2007 which involved the use of Criminal Force on me, the applicant, at the behest of senior officers. I may kindly be provided certified copies of the proceedings and conclusions of such an enquiry.
6. Kindly provide certified copies of all the recommendations/ comments/ decision making documentation (including the file noting/ recommendation for suspension of Dr. Amitabh Kumar) made by Shri V. K. Joshi, IPS then Dg, ITBPF in the case of Human Rights Violation of Dr. Amitabh Kumar, SMO, BTC, ITBPF on 1.10.2007.
7. Kindly provide certified copies of the call details with a list of the incoming and outgoing calls on the official mobile number- 98101-85011 of Shri V. K. Joshi, IPS, then DG, ITBPF for the period between 10 AM to 2 PM on 1.10.2007 and between 11.55 AM to 2.30 PM on 25.1.2008.
8. Kindly also provide certified copies of the call details with a list of incoming and outgoing calls on the officials P&T (MTNL) landline Number-011-2436-0618 and 2436-1918 of then DG, ITBPF Shri V. K. Joshi, IPS between 10 AM to 2 PM on 1.10.2007 and between 11.55 AM to 2.30 PM on 25.1.2008.
9. Kindly provide certified copies of the incoming fax register of the ITBPF Directorate General Fax No. 011-
2436-0628 for the date 30.9.2007 between 1830 hours and 1930 hours. Kindly also provide certified copies of the incoming Faxed application by Dr. Amitabh Kumar, SMO, BTC, ITBPF, Bhanu dated 30.9.2007 received on the Directorate General, ITBPF Fax No. 011-24360628 from Fax No. 0172-5064869 (Panchkula) at around 1855 hours along with official comments/ recommendations of concerned authority on the afore mentioned faxed application.
10. Kindly provide certified copies of the proceedings, based on which the Department concluded that, I have committed the offences and initiated disciplinary proceedings against me, whereas, in reality I was the victim of this incident of Human Rights Violation on 1.10.2007 at BTC, ITBPF, Bhanu.
11. Kindly provide the certified copies of the proceedings of the enquiry based on which a charge sheet was issued to me regarding the incident of my Human Rights Violation on 1.10.2007 at BTC, ITBPF, Bhanu.
12. Kindly inform whether, there was a Court of Inquiry (COI), that is fact finding body which investigated the incidents 2 of Human Rights Violation of 1.10.2007 at BTC, ITBPF, Bhanu Campus, Panchkula. Kindly provide me a certified copy of its findings and opinion.
13. In the case, a court of inquiry (COI) as envisaged under chapter XIV, Rule 175 of ITBPF Rules 1994, was not conducted to investigate the incidents of 1.10.2007 of BTC, ITBPF, Bhanu Campus, Panchkula, kindly intimate the officially stated reason for not conducting the Court of Inquiry and also provide certified copies of the file noting and other documents relating to this decision making resulting in the decision to not conduct a Court of Inquiry to investigate the incidents of 1.10.2007 at BTC, ITBPF, Bhanu Campus, Panchkula.
14. In case, a Court of Inquiry (COI) was not conducted to investigate the incident of 1.10.2007 kindly intimate whether any other local domestic enquiry was conducted by the competent authority, which applied its mind towards the initiation of disciplinary proceedings against me. Kindly provide certified copies of the findings and opinion of any such enquiry.
15. Kindly provide certified copies of the file noting/ document along with DG's recommendations in the decision making process ordering my out of tenure transfer to 16th Bn ITBPG, Leh from BTC, Bhanu and file noting along with DG's Recommendations on my subsequent representation dated 14.11.2007. Kindly also provide certified copies of file noting/ other document along with DG's recommendation for retaining Dr. Padma Bhatt M. O. at BTC, Bhanu for a RECORD 5th year in July 2007.
16. Kindly intimate the officially stated reasons/ provisions under which Dr. Jyoti Damle (Ahuja), CMO (who joined ITBPF in 1997 and Dr. Padma Bhatt S. M. O. (who joined ITBPF in January 2003 at BTC, ITBPF) continue to enjoy, exceptionally long soft tenures of more than 11 years and 6 years respectively, in clear violation of Departmental Transfer Policy. Kindly intimate, if some special transfer provisions/ policy are followed in case of the above named doctors. If not kindly intimated the officially stated reason for such favourable treatment given to the abovementioned doctors, which clearly amounts to a discrimination in matters of public employment (article 16 of Indian constitution).
17. Kindly intimate the official stated reason as to why no written statement has been filed in the Hon'ble High Court of Punjab and Haryana even after more than an year, in reply to C. M. application No. 19417 (in C.W.P. No. 17778 of 2007, Dr. Amitabh Kumar vs. Union of India), challenging the FALSE Departmental claim of petitioner's SOS/ purported relieving from BTC, Bhanu on 16.11.2007 on which notice was issued by the Hon'ble 3 Court on 7.12.2007. Kindly provide a certified copy of the file noting/ other documents related to the decision making process.
18. Kindly intimate and provide copies of the officially stated report of the incident of Human Rights Violation involving my Criminal Physical Assault, Battery, Attempted Forced Abduction and Unlaw full/ illegal Confinement occurring at BTC, ITBPF, Bhanu Campus on 1.10.2007 at the instance of Senior officers of Indo Tibetan Border Police Force.
19. Kindly provide certified copies of the R. O. E statement of AC/GD Bhagwati Prasad, HC/GD Sujan Singh and CT/ Recruit Varun Rathi, given during the ROE of CT/ Recruit Ravi Kumar Mishra at 38th Bn, ITBPF Shivpuri, M. P. held between December, 2007 to January, 2008.
20. Kindly intimate the officially documented reasons which led to Shri M. C. Bhatt, DIG, BTC stating on 27.9.2007 in ITBPF form 207 of DR. Amitabh Kumar that Dr. Amitabh Kumar Fabricated a Medico Legal Case at GMCH, Sector-32 against one HC/ GD Nanda Vallabh on 19.9.2007, even though the Enquiry to investigate the said incidents of 19.9.2007 completed its investigations, 14 days later on 10.10.2007.
21. Kindly provide a certified copy of the DIG, BTC office letter No. ITBP/BTC/Estt-3/Discipline-07-7152 dated 26.9.2007 ordering an Enquiry into the incident which occurred on 19.9.2007 with ct/ Recruit Ravi Kumar Mishra.
22. Kindly provide a certified copy of the DIG, BTC office letter No. 1695 dated 5.3.2008.
23. Kindly provide a certified copy of JAG, SHW (L&C) office Fax No. 4263 dated 7.12.2007 conveying his legal opinion regarding my official status whether I was legally relieved/ not relieved from the BTC, ITBPF submitted in reply to the IG (TRG) Zone request for his legal opinion on the matter.
24. Kindly provide a certified copy of the office note sent by Dr. H. K. Malhotra containing his comments on the nature of injuries sustained by Ct/ Recruit Ravi Kumar Mishra on 19.9.2007 after evaluation of GMC & H, Sector-32, Chandigarh office letter No. 115 dated 15.2.2008.
25. Kindly intimate, as to who was the Commanding officer of BTC, ITBPF, Bhanu on 3.10.2007.
26. Kindly provide certified copies of documents/ file noting (file noting) involved in decision making in respect of Shri P. Vijay Kumar's referral for Mental Treatment in 1997 (who was the Commandant Telecom Battalion, ITBPF in December 2007 and January 2008) which was recommended by Dr. Dinesh Sharma. Kindly also intimate if he was treated for mental ailments as per the 4 referring Doctors recommendation. In case he was not treated as per recommendations, kindly provide certified copies of Documents/ file noting involved in the Decision making process for not sending him for treatment as per recommendation of the referring Doctor.
27. Kindly intimate, the officially stated reason and provide certified copies of file noting /documents involved in Decision making of decision for cancellation of P. G. permission in R/O Dr. Amitabh Kumar, as intimated to him vide Director Medical Signal dated 28.9.2007 without assigning any reasons, even though his P. G. permission was for PSYCHIATRY, a subject in which there was a shortage of Specialists prompting a Director Medical signal in March/ April 2007 requesting for intimating willingness of candidates of UDNERGO P.G. IN PSYCHIATRY and even though Dr. Amitabh Kumar had voluntarily undergone training in psychiatry in December, 2006 under intimation and due permission of the same Director Medical, ITBPF.
28. Kindly intimates the officially stated reasons for issuing of specific instructions in October 2007 for not sending any patient to MHCC, Saboli.
29. Kindly intimate the number of Gazetted officer's along with their names who have been placed under suspension since the ITBPF Rules 1994 cam into force, on grounds of pending or contemplated disciplinary proceedings till date. Also intimate the number of Officer's along with their names, who have been placed under suspension on grounds of contemplated disciplinary proceedings, in exercise of special power sanctioned to DG, ITBPF under MHA order No. 1- 45022/89/98/Pers-1 dated 30.4.2001, till date.
30. Kindly intimate the amount of money paid to No. 111107561 dated Dr. Amitabh Kumar since his suspension on 7.12.2007 till date on account of payment of subsistence allowance.
31. Kindly provide certified copies of the file noting along with the recommendations of the suspension review committee which reviewed the suspension of the Dr. Amitabh Kumar in March 2008, June 2008 and December, 2008 respectively.
32. Kindly provide a certified copy of the decision making process/ file noting of the deliberation or any such documents used by IG (TRG) Zone, Shri K. B. Singh, IPS, who was not present at BTC, Bhanu at the time of the above quoted incident of Human Rights Violation of Dr. Amitabh Kumar, SMO, BTC, Bhanu at around 1130 hours on 1.10.2007 to arrive at the Decision that Dr. Amitabh Kumar was the accused in the said incident, thereby issuing him the charge sheet on 3.10.2007.
533. Kindly provide a certified copy of the receiving of PA to DIG office Note 254 dated 1.10.2007 on which I have specially notified the time of receiving of my returned letter dated 30.9.2007 which was submitted earlier to him for onward submission to the DIG, BTC at around 0930- 0945 hours on 1.10.2007.
34. Kindly intimate the officially stated reasons, as to how Dr. Amitabh Kumar, who is charged with disobeying the Lawful Command of Director Medical for his referral to MHCC, Saboli for Mental treatment, was allowed to stand trial without evaluating his mental fitness to stand trial.
35. Kindly intimate, as to how many officers, subordinate officers and other ranks have been referred for mental treatment by Director Medical till date, since the creation of post of Director Medical, ITBPF. Kindly also 8intiamte their names and the departmental provisions/ instructions under which the Director Medical is authorised to issue such directions for referral of Force Personnel, to whom he has no access or opportunity for physical and medical examination and evaluation.
36. Kindly intimate the officially stated reasons why despite several letters and reminders from Dr. Amitabh Kumar including the one dated 18.9.2008, mentioned in Directorate General letter No. 253 dated 6.11.2007 seeking to know the reasons for his suspension on grounds of contemplated disciplinary proceedings, he has till date, not been intimated the reasons for his suspension on grounds of contemplated disciplinary proceedings.
37. Kindly provide certified copies of the decision making process (if any0followed to reach the conclusion that Dr. Amitabh Kumar, SMO who was being forcibly taken for mental treatment to MHCC, Saboli which he refused to undergo, no longer required any further mental treatment and was now fit to stand trial and face disciplinary proceedings within a mere 48 hours after being Criminally Assaulted Battered, physically hauled to be dumped to illegal Confinement in the Unit Ambulance at around 1100-1145 hours on 1.10.2007.
38. Kindly intimate the officially stated reasons for holding the GFC of Commandant G. S. Kapoor Dc/GD Akhilesh Rawat and other officers at BTC, Bhanu in 2001, although, the said incident in connection with which the GFC was ordered occurred during training at M&SI Auli and nearby training areas. Kindly intimate the stated rationale behind holding the GFC of said officers at a distance of more than 500 km at BTC Bhanu. Kindly also intimate the officially stated reasons and provide certified copies of the decision making process vide which despite such a precedent of holding a GFC at a soft location of 6 BTC, Bhanu it was decide to hold the GFC of Dr. V. L. N. Thakur at Hard Location of 12th Bn Matli, Uttarkashi when the concerned incident occurred at the soft location of BTC, Bhanu, Panchkula, Haryana.
39. Kindly intimate and provide certified copies of the departmental Regulations to be followed/ adhered in Relieving of Officers and other Force Personnel on Transfer. Kindly also intimate exceptions, if any to the Departmental Relieving Regulations/ Instructions and enumerate the special circumstances governing such laid down exceptions.
40. Kindly intimate the relieving regulations followed in the purported relieving of Dr. Amitabh Kumar from BTC, Bhanu on 16.11.2007 and provide certified copies of my charge Relinquishment Certificate, Clearance Certificate, No dues certificate and such other necessary documents, acceptable as substantial evidence of the Department's purported claim of my legal and lawful S.O.S. from the BTC, Bhanu on 16.11.2007.
41. Kindly intimate the officially laid down Departmental Procedure for Disposal of Representation of affected force personnel made for reconsideration/ cancellation of the affecting orders. Kindly also intimate, the officially stated position, as to whether an authority, subordinate to the Competent Authority to whom such representation has been made, can take any further action in respect of the order Represented against during the tendency of the Representation.
42. Kindly provide a copy of DIG, BTC office letter No. ITBP/ BTC/ QM/Residence/07-339 dated 11.7.2007 ordering me to forcibly share accommodation, with Dr. Deepanker Nayak, CMO (SG) and my subsequent reply to this letter dated either 13.7.2007 or 14.7.2007 conveying my inability to share accommodation due to invasion of privacy and seeking accommodation in any type of accommodation available for reasons of maintaining my privacy and his subsequent allotment letter in pursuance to my said reply (unfortunately I have misplaced this application).
43. In addition, kindly provide certified copies of all the documents sought for in my application dated 16.2.2009 requesting to provide the said documents in compliance to MHA OM No. 30/5/61-DVD dated 25th August, 1961.
44. Kindly intimate the official reasons for detailing DR. V. L. N. Thakur AC (VAS) for duty as per 12 Bn ITBPF order No-12Bn/ITBP/Ec-2/DIG INSP/2008-3860 dated 19.5.2008 despite his being under suspension vide Dte. Gen. ITBPF order No. PErs-I-1857 dated 7.12.2008."
7The request for information is preceded by the sentence describing the information sought, as "these are human rights violations of 1-10-07 at BTC, ITBP F, Bhanu Panchkula." On not receiving a reply Dr. Amitabh Kumar moved an appeal before Shri Pramod Asthana, 1st Appellate Authority pleading as follows:
"As per section 24 of the RTI Act, information pertaining to allegations of CORRUPTION & HUMAN RIGHTS VIOLATION is not exempt from disclosure and the sought information is specifically in relation to my ONGOING DEPARTMENTAL VICTIMISATION, which is a clear case of Human Rights Violation and Corruption. It is further intimated that the HUMAN RIGHTS PROTECTED under the Indian Constitution are ARTICLE 14, ARTICLE 15, ARTICLE 16, ARTICLE 17, ARTICLE 19, ARTICLE 20, ARTICLE 21, ARTICLE 22, ARTICLE 29, ARTICLE 30 AND ARTICLE 32. Therefore, it is requested that the organization refrain from its habitual practice of denying information under the cover of section 24 of RTI Act, 2005, as the definition of Corruption and Human Rights violation is not subject to individual interpretations in view of these clearly laid out definitions in Chapter III of Constitution of India."
On still not receiving a response Dr. Amitabh Kumar has moved a second appeal before us with the following prayer:
"I am an Upright, Law Abiding, Conscientious Citizen of India and member of the respondent Force, i.e. ITBPF. At the instance of some superior officer of the INDO TIBETAN BORDER POLICE FORCE, my Human Rights were violated resulting in the Reprehensible incident of my Criminal Physical Assault, Battery, Attempted Abduction and illegal Confinement in an Ambulance at BASIC TRAINING CENTRE, IDNO TIBETAN BORDER POLICE FORCE, BHANU CAMPUS, DIST-PANCHKULA, HARYANA on 1.10.2007 followed by my extreme victimisation (DESPITE BEING THE ACTUAL VICTIM) by initiating an arbitrary, illegal and unjust disciplinary proceedings on 3.10.2007 and further illegal, unjust and punitive transfer to 16th BN ITB Police, Leh ordered on 13.11.2007 further resulting in various incidents an disciplinary proceedings. In view of my Continuing Human Rights Violation and VICITMISATION, I sought for information/ documents vide my RTI application dated 14.3.2009, which is required for my defence in my C. W. Petitions No. 17778 of 2007 & No. 7815 of 2008, SUB JUDICE I NTHE HON'BLE HIGH COURT OF PUNJAB AND HARYANA. Therefore, in view of the facts stated above and these clearly laid out Articles in Chapter III of Constitution of India, it is quite clear that the information sought if NOT EXEMPTED UNDER SECTION 24 OF THE RTI Act, 2005 and 8 hence, it is prayed that the respondent CPIO be directed to provide the said information immediately, for my life and liberty are under continuous threat every minute of the day and night.' This appeal has been registered as a complaint treating the petition of 10-4-09, as an allegation of human rights violation on the grounds of what complainant Dr. Amitabh Kumar claims was an "illegal and unjust disciplinary proceedings".
In response to our complaint notice of 23-5-09 we have received detailed comments dated 12-6-09 from Shri Mukul Goel, DIG (Pers.I), office of DG, ITBP in which, while claiming exemption from the Right to Information u/s 24 (1) he has gone on to describe the circumstances of this case as follows:
"3. .....the complainant was undergoing treatment for 'Anxiety Neurosis' and De-addiction treatment for alcoholic abuse from Psychiatrist, Govt. Medical College Hospital, Sector-32, Chandigarh since 9.7.2007. On observing abnormal behaviour of the said officer, a report was sent to the Director (Medical) by the DIG (BTC), ITB Police. As in ITBP, a Mental Health Care Centre is operational at SS Bn, Saboli for treatment of such type of cases. Director (Medical), ITB Police, directed DIG, BTC to send Dr. Amitabh Kumar, SHO to Mental Health Care Centre, ITBP, Saboli with an escort for further treatment. When the ambulance in which Dr. Amitabh Kumar was being taken to MHCC, Saboli reached GD Gate on 1.10.2007, as per their plan, Dr. V. L. N. Thakur reached the spot, forcibly opened the door of Ambulance and de- boarded Dr. Amitabh Kumar from the Ambulance shouting that nobody will take him anywhere. Thereafter both the officers interacted with the media on 1.10.2007 and reported a fabricated and false story in gross violation of Govt. Rules and instructions on the subject.
4. As such, orders were issued for preparation of Record of Evidence (ROE) against the officer. In the ROE, prima facie evidence had come on record for initiation of disciplinary proceedings against him for violation of good order and discipline under section 43 of ITBPF Act for unauthroisedly interacting with media on 1.10.2007, disobedience to lawful command under section 23 (2) of ITBPF Act for refusing to move to Mental Health Care Centre, Saboli for treatment as per the direction of Director (Medical) and insubordination & obstruction by resisting the guard/ escort and dismounting from the vehicle provided for his movement to MHCC, Saboli on 9 1.10.2007 while being posted in Basic Training centre, Bhanu (Haryana).
5. Since disciplinary proceedings were contemplated against the officer, he was placed under suspension. As he had already been relieved on transfer from BTC w.e.f. 16.11.2007 (FN) with the direction to report to Commandant, 16th Bn, ITB Police, Leh after availing the usual joining time, as such, his HQ during suspension was fixed at 16th Bn Leh (J&K) by the competent authority. However, he has been absenting unauthorisedly and has not yet reported to his HQ i.e. 16th Bn, Leh. After conducting a Court of Inquiry under the provisions of ITBPF Act 1992 and ITBPF Rules 1994, he was declared as deserter from the Force w.e.f. 26.11.2007 (FN) by the Commandant, 16th Bn, ITB Police.
6. Under section 73 of ITBPF Act, 1992, ITBP requested District Police, Varanasi (UP) to apprehend him. As he was not traceable, the District Police, Varanasi could not apprehend him and informed the organization that his whereabouts could not be ascertained. The General Force court under ITBPF Act and Rules could not be convened for his trial as he is unauthorisedly absenting. Besides, the officer is neither responding nor accepting the official communications sent to his known addresses.
7. Since, he is unauthoriseldy absenting w.e.f. 26.11.2007, which is a serious misconduct/ offence as a member of the Force, a Notice dated 27.3.2009 (copy enclosed) under section 10 of ITBPF Act, 1992 read with Rule 18 of ITBPF Rules, 1994 was issued to him giving him an opportunity to show cause before action of termination of his service taken against him. The said 'Show Cause Notice' dated 27.3.2009 has been sent to his home address through regd. Post as well as through advertisements in some leading newspapers dated 22.4.2009 i.e. (i) The Times of India, New Delhi (ii), 'Hindustan', New Delhi (iii) 'Mahamedha' Ghaziabad and
(iv) 'Amar Ujala' Varanasi. The 'Show Cause Notices' sent to his home addresses by regd. Post, were received back undelivered. However, the officer has sent his reply to the Show Cause Notice vide his representation dated 22.4.2009, his representation is being deliberated in detail in this Dte. Gen. For the recommendation of further course of action to the Central Govt. on account of such a prolonged unauthorised absence from his place of posting/ HQ of suspension since 26.11.2007 under section 10 of ITPBF Act read with rule 18 (4) of ITPBF Rules.
8. The contention of the complainant that there is a threat to his life & liberty is completely baseless and unfounded. He is trying to avoid the disciplinary proceedings for the 10 above said misconducts. He has been time and again advised to report to his HQ immediately and seek documents, if any, relevant for his defence in the disciplinary proceedings. But he has not reported back and is unauthorisedly absenting and making false complaints against ITPB Officers.
9. In his applications/ complaints, he has alleged that his transfer from BTC, ITB Police to 16th Bn, Leh was stayed by the Hon'ble High Court of Punjab and Haryana. In this regard it is stated that the complainant was relieved on transfer from BTC to Leh w.e.f. 16.11.2007 (FN). However, the Hon'ble Punjab & Haryana High Court passed orders on 23.11.2007 that 'if the petitioner has not already been relieved from Panchkula, operation of transfer order dated 14.11.2007 shall remain stayed till further orders'. As the officer had already been relieved from BTC w.e.f. 16.11.2007 (FN) prior to the passing of the order by the Hon'ble High Court, the question of Hon'ble High Court staying the order dated 14.11.2007 does not arise. Therefore, the contention of the complainant that his transfer was stayed by the Hon'ble Court is incorrect and baseless.
10. In the light of the above, the complaints/ appeals referred to above, are false, baseless and without any merit and are not maintainable under RTI Act, 2005. It is, therefore, requested that all these complaints/ appeals preferred by the officer, may kindly be rejected being devoid of merit."
In the meantime we have also received a representation dated 18-4-09 from complainant Dr. Amitabh Kumar stating that his life and liberty being under threat "I am constrained to withhold my postal address and instead am providing my E MAIL ID: [email protected] for further correspondence. It is also requested that, given the obvious threat to my life, my RTI appeal be fast tracked accordingly, and the concerned CPIO be directed to furnish the sought information immediately, without any further delay." Subsequently, in a rejoinder to the response of CPIO, ITBP to the complaint notice Dr. Amitabh Kumar after a detailed argument on delay in the response/comments of the CPIO and "unnecessary postal despatch" has concluded as follows:
"I again reiterate my apprehensions of a threat to my life and liberty and request you to take suitable corrective action, enabling me to file a Rejoinder in this respect further facilitating the adjudication of my complaint as per process of law in order to take the matter to this logical conclusion."11
File No. CIC/WB/C/2009/00258 In this case by an application of 14-3-09 Dr. Amitabh Kumar has sought the following information;
'1. Kindly provide a certified copy of the Results of 26th GO's Combatisation Course held w.e.f. 21.5.2003 to August- September 2003.
2. Kindly provide certified copies of the feedback report submitted by the 16 trainees who underwent the 26th GO's Combatisation course.
3. Kindly also intimate the official reason, why as an exception to the usual practice, a 3rd prize was not awarded to any trainee. Also intimate, the name of the trainee who stood 3rd in the overall result of the Course.
4. Kindly intimate the official procedure followed by the Course Assessors in concluding that, Dr. Amitabh Kumar i.e. the undersigned, was lacking in confidence.
5. Also intimate the official procedure followed by the Course Assessors in concluding that, Dr. Amitabh Kumar i.e. the undersigned, tended to project unnecessary problems and that he possessed a negative attitude. Kindly intimate the objective parameters, if any used to evaluate, what constituted a negative or a positive attitude and also the objective parameters, if any sued to define, what constitutes necessary problem and what constitutes an unnecessary problem.
6. Kindly provide a certified copy of the remarks endorsed on the interview register by Shri M. P. Vasudeva, then IG (TRG) zone after my interview him on 31.7.2003.
7. Kindly provide a certified copy of the remarks endorsed on the interview register by Shri M. S. Hyanki, then ADIG (TRG) zone after my interview with him sometime between 20.7.2003 to 30.7.2003.
8. Kindly intimate the officially stated reasons for not taking any further action on my interview application dated 5th/ 6th or 7th September 2003 seeking an interview with then ADG, ITBPF Shri J. K. Sinha, IPS who was on location at ITPB Academy, Mussoorie to attend the passing out parade of 26th GO's Combatistion Course.
9. Kindly intimate the official definition of human rights referred to in IG (TRG) Zone letter No. 44 dated 13.3.2008 rejecting the RTI appeals dated 12.2.2008 of Dr. Amitabh Kumar.
10. kindly also intimate the relevant clause/ section/ subsection of the RTI Act 2005, which necessitates the communication of purpose of seeking information under RTI Act, as sought for by the Appellate Authority, IG (TRG) Zone in IG (TRG) zone letter no. 44 dated 13.3.2008, rejecting my RTI appeals dated 12.2.2008.
1211. Kindly also intimate the relevant clause/ section/ subsection of RTI Act, which necessitates that the information sought under RTI Act 2005 must pertain to the applicant's case as directed in IG (TRG) zone letter no. 44 dated 13.3.2008 rejecting my RTI appeals dated 12.2.2008.
As per section 24 of the RTI Act, information pertaining to allegations of CORRUPTION & HUMAN RIGHTS VIOALTION is not exempt from disclosure and the sought information is specifically in relation to my ONGOING DEPARTMENTAL VICTIMISATION, which is a clear case of Human Rights Violation and Corruption. It is further intimated that the HUMAN RIGHTS PROTECTED under the Indian Constitution are ARTICLE 14, ARTICLE 15, ARTICLE 16, ARTICLE 17, ARTICLE 19, ARTICLE 20, ARTICLE 21, ARTICLE 22, ARTICLE 29, ARTICLE 30 AND ARTICLE 32. Therefore, it is requested that the organization refrain from its habitual practice of denying information under the cover of section 24 of RTI Act, 2005, as the definition of Corruption and Human Rights violation is not subject to individual interpretations in view of these clearly laid out definitions in Chapter III of Constitution of India.
As submitted above, I hereby undertake to make additional payments as per applicable rates for the copies/ documents provided in response to my RTI application. Also in view of threat to my life I am presently not available at my postal address, hence any communication with me in this connection is made at my E Mail ID: [email protected]. It is further, reiterated that the above information be provided to me within the time limit fixed for providing information to a person whose life and liberty are threatened."
In this case also, on not receiving a response from the CPIO, Dr. Amitabh Kumar has moved an appeal before Shri B.K. Singh, Appellate Authority, ITBP Academy, Mussoorie on 20-3-2009 again alleging as follows:
"As per section 24 of the RTI Act, information pertaining to allegations of CORRUPTION & HUMAN RIGHTS VIOALTION is not exempt from disclosure and the sought information is specifically in relation to my ONGOING DEPARTMENTAL VICTIMISATION, which is a clear case of Human Rights Violation and Corruption. It is further intimated that the HUMAN RIGHTS PROTECTED under the Indian Constitution are ARTICLE 14, ARTICLE 15, ARTICLE 16, ARTICLE 17, ARTICLE 19, ARTICLE 20, ARTICLE 21, ARTICLE 22, ARTICLE 29, ARTICLE 30 AND ARTICLE 32. Therefore, it is requested that the organization refrain from its habitual practice of denying information under the cover of section 24 of RTI Act, 2005, as the definition of Corruption and Human Rights violation 13 is not subject to individual interpretations in view of these clearly laid out definitions in Chapter III of Constitution of India.
Also in view of threat to my life I am presently not available at my postal address, hence any communication with me in this connection be made at my E Mail ID."
Finally, on once more not receiving any response Dr. Amitabh Kumar has moved a second appeal before us with the following prayer:
"I am an Upright, Law Abiding, Conscientious Citizen of India and member of the respondent Force, i.e. ITBPF. At the instance of some superior officer of the IDNO TIBETAN BORDER POLICE FORCE, my Human Rights were violated resulting in the Reprehensible incident of my Criminal Physical Assault, Battery, Attempted Abduction and illegal Confinement in an Ambulance at BASIC TRAINING CENTRE, INDO TIBETAN BORDER POLICE FORCE, BHANU CAMPUS, DIST-PANCHKULA, HARYANA on 1.10.2007 followed by my extreme victimisation (DESPITE BEING THE ACTUAL VICTIM) by initiating an arbitrary, illegal and unjust disciplinary proceedings on 3.10.2007 and further illegal, unjust and punitive transfer to 16th BN ITB Police, Leh ordered on 13.11.2007 further resulting in various incidents an disciplinary proceedings. In view of my Continuing Human Rights Violation and VICITMISATION, I sought for information/ documents vide my RTI application dated 14.3.2009, which is required for my defence in my C. W. Petitions No. 17778 of 2007 & No. 7815 of 2008, SUB JUDICE IN THE HON'BLE HIGH COURT OF PUNJAB AND HARYANA. Therefore, in view of the facts stated above and these clearly laid out Articles in Chapter III of Constitution of India, it is quite clear that the information sought if NOT EXEMPTED UNDER SECTION 24 OF THE RTI Act, 2005 and hence, it is prayed that the respondent CPIO be directed to provide the said information immediately, for my life and liberty are under continuous threat every minute of the day and night.' This case has, for the same reason as described in processing the case under file No. CIC/WB/C/2009/00259, been treated as a complaint. Because the response of 12-6-09 received from PIO, DIG (Pers.I) Shri Mukul Goel applied equally to this case, also addressing the present appeal/complaint dated 10-4-09, we have treated this as an answer also to our complaint notice sent on the same day with regard to this case.14
The issue in both cases is whether because there is an allegation of human rights violation as a consequence of which, this Commission may under proviso to sub Section (1) of Section 24 direct the public authority, in this case the ITBP Force, to provide the information sought since it pertains to "allegation of human right violations".
DECISION NOTICE No doubt there has, in both cases, been an assertion of human rights violation by complainant Dr. Amitabh Kumar. In File No. CIC/WB/C/2009/00259, moreover, there is the allegation implied in question 5 as below:
"Kindly intimate whether, any independent and impartial enquiry was conducted into the incidents of Human Rights Violation of 1.10.2007 which involved the use of Criminal Force on me, the applicant, at the behest of senior officers."
In File No. CIC/WB/C/2009/00258 there is no such implication in the questions asked, but is merely an assertion in conclusion. However, in order that this be treated as an allegation. the subject on which the information is sought is required to pertain to the issue of human rights violation. In both these cases the allegation is of "on going departmental victimisation" which complainant Dr. Amitabh Kumar has construed to imply both as human rights violation and a violation of his Fundamental Rights under the Constitution of India.
This Commission in full Bench has dealt with this issue in the case of Brig. Ujjal Dasgupta Vs. Cabinet Secretariat" decided on 25th day of August, 2009 under appeal No. CIC/WB/A/2009/00182:
"26. Under the Protection of Human Rights Act, 1993, `human rights' have been defined to mean and include the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenant enforceable by courts in India. The appellant has stated that the information that he is seeking relates to his liberty and continued detention in jail. Prima facie, the information relates to human rights. But the proviso to Section 24 of the RTI Act applies only when there are allegations of human rights violations. It would be worthwhile to quote Section 24(1) of the RTI Act, which reads as under:15
"Sec.24:
(1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations 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."
27. Presumption of innocence has been recognized to be a human right and an accused, as has been observed by the Apex Court in Noor Aga Vs. State of Punjab & ors [2008 (56) BLJR 2254] "it is a trite law that presumption of innocence being a human right cannot be thrown aside." However, the Hon'ble Apex court has recognized that this right has to be applied subject to exceptions.
28. It is an admitted fact that Research and Analysis Wing (RAW) is an intelligence wing of the Government and has been listed at S. No. 2 in Second Schedule of the RTI Act, 2005. The provisions of the RTI Act do not apply in cases of exempted organizations unless the information sought pertains to the allegations of corruption or human rights violation The Commission is, therefore, required to determine as to whether the information asked for by the appellant in this case pertains to allegation of human right's violation.
29. The appellant submitted and it was also argued during the course of hearing that if the information asked for concerns violation of human rights of a citizen, the proviso to Section 24 of the RTI Act would apply and the Commission will have the jurisdiction to direct the concerned public authority to disclose the information. It has also been submitted on behalf of the appellant that it is not necessary to prove violation of human rights and that an averment which merely alleges violation of human rights would be good enough for bringing the matter within the ambit of proviso to Section 24 of the RTI Act, provided that the allegation is substantiated to concern human rights." 1 1 Emphasis added 16 In the present case therefore what is required is that the allegation be "substantiated to concern human rights." Clearly, what has been substantiated is only that disciplinary proceedings are under process against complainant, which he considers to be 'victimisation'. Besides, in his response to the complaint notice CPIO Shri Mukul Goel has dwelt at some length upon the particular incident sought to be relied upon by complainant Dr Amitabh Kumar as one of human rights violation, which we have quoted in full.
From the above it is clear that although in both cases complainant Dr. Amitabh Kumar has sought to give a slant of human rights violations to his allegation, this is, in fact, a simple case of personnel management for which it is difficult to see how it constitutes an allegation of human rights violation. For this reason, we uphold the decision of CPIO Shri Mukul Goel, if indeed the decision was his, in refusing the information u/s 24 (1) on the grounds of ITBP being listed on the Second Schedule of RTI Act at serial No. 11.
On the other hand we cannot take the same view regarding the failure of the ITBP to respond to both the RTI applications and also to the appeals. In such cases as this, particularly because there has been a statement of human rights violation, but also in general terms. it is the responsibility of any public authority to respond to any correspondence let alone an RTI application even if the information sought is to be refused, providing reasons for such refusal or giving the information sought, if so merited. CPIO, ITBP is cautioned to take note of this requirement lest in any future case he render himself liable to penalty in accordance with sub Section (1) of Section 20., for obstructing in any manner furnishing information sought under the RTI Act Announced on this 7th day of January, 2010. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 7-1-2010 17 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 7-1-2010 18