Central Information Commission
Swapan Kumar Rakshit vs Comptroller & Auditor General on 16 April, 2020
के न्द्रीय सचू ना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मनु नरका
Baba Gangnath Marg, Munirka
नई निल्ली, New Delhi - 110067
नितीय अपील सख्ं या / Second Appeal No.:- CIC/CAGIN/A/2018/153860-BJ
Mr. Swapan Kumar Rakshit
....अपीलकताग/Appellant
VERSUS
बनाम
CPIO
Indian Audit and Accounts Department
Accountant General (A & E), West Bengal
Treasury Buildings 2, Govt. Place (West)
Kolkata - 700001
...प्रनतवािीगण /Respondent
Date of Hearing : 15.04.2020
Date of Decision : 16.04.2020
Date of RTI application 25.04.2018
CPIO's response 17.05.2018
Date of the First Appeal 29.05.2018
First Appellate Authority's response 22.06.2018
Date of diarised receipt of Appeal by the Commission 31.08.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information on 03 points relating to authorization of pensionary benefits to Sri Sushil Kumar De (PD 124O), retired on 31.12.2016, working under the Superintendent of Police, Howrah (Rural), West Bengal with documentary evidences, viz. copies of Pension Payment Order, Gratuity Payment Order and Final GPF Payment Order; promotion of Sri De from Constable to Police Driver with documentary evidence and other issues related thereto.
The CPIO, vide its letter dated 17.05.2018, denied disclosure of information being "Third Party"
information. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 22.06.2018 while relying upon the decision of the Commission in Appeal No. CIC/SA/A/2015/001934 dated 25.02.2016 in the case of Sunita Chopra Vs Dte of Education (North), GNCTD, upheld the CPIO's response for point no. 01. As regards points 02 and 03 of the RTI application, it was informed that the information could be obtained from the Pension Sanctioning Authority.Page 1 of 6
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Swapan Kumar Rakshit through TC;
Respondent: Mr. Rahul Kumar, Dy Accountant General (Administration) and CPIO through TC;
The Appellant reiterated the contents of his RTI application and stated that the information sought had not been received. It was argued that he need not justify the public interest to seek information about the civil servant as per the provisions of the RTI Act, 2005. In its reply, the Respondent re-iterated its submissions and stated that the Third Party information disclosing personal details could not be furnished to any applicant.
The Commission was in receipt of a written submission from the Appellant dated 10.04.2020 wherein it was stated that due to prevailing condition, it may not be possible for him to attend the venue which was about 25 KM away from his home, hence he furnished his written submission in the matter wherein it was inter alia stated that the entire service records of a West Bengal Government employee were sent to the office of Pr. Accountant General (A&E), West Bengal by the Pension Sanctioning Authority one year prior to his retirement date for audit of his service and authorization of pensionary benefits. Hence, copies of Pension Payment Order, Gratuity Payment Order and Final GPF Order were with the office of Pr. Accountant General (A&E), West Bengal. Furthermore, the Note/Order Sheet of auditing the promotion order and fixation order were with the O/o the Pr. Accountant General (A&E), West Bengal. Hence, it was prayed to direct the supply of the copies of the same. He further submitted that there was nothing on record to suggest that the procedure under Section 11(1) of the RTI Act, 2005 was followed. Furthermore, according to section 8(1)(j) of the RTI Act,2005 if the information is personal information, it must be seen whether the information came to the public authority as a consequence of a Public activity. Generally, most of the information in public records arise from a public activity. However, there may be some personal information which was not a consequences of a public activity, eg, medical records, transaction with a public sector bank or possession of some Information during a raid or seizure which would not be exempted. The denial of information from public records on grounds of privacy had to be in line with Article 19(2) of the Constitution which follows placing restrictions on Article 19(1)(a) in the Interest of "decency or morality". Before denying information, it must be subjected to the acid test of the proviso: "provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person". It was further submitted by the Appellant that the PSA failed to provide information in spite of order of the State Information Commissioner, West Bengal dated 19.03.2018 Appeal No.2565 of 2017. Hence, it could be said that Shri Sushil De is enjoying undue financial benefits out of Public money with the aid and abatement of some Government Officials, since 8th June, 1995 (his date of promotion). The Appellant therefore prayed for an order for Penalties under section 20 of the RTI Act, 2005 and submitted that a copy of this submission had been forwarded to the CPIO as well.
The Commission was also in receipt of a written submission from the Respondent dated 03.04.2020 wherein while re-iterating the response of the CPIO/ FAA, it was stated that the CPIO had no scope to give any other assistance by providing information which related to personal information of Shri Sushil Kumar De and had no relation to any larger public interest and might cause unwarranted invasion of the privacy of the individual. Moreover, the CPIO was directed to provide information as well as required copies of documents sought for after taking Page 2 of 6 proper fees as per the provisions of the RTI Act (Regulation of Fee and Cost) Rules, 2005 against the application to be received from Shri Sushil Kumar De directly. In support of their contention, the Respondent also referred to the decision of the Commission in CIC/SA/A/2015/001934.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE and Anr. Vs. Aditya Bandopadhyay and Ors), wherein it was held as under:
35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of Page 3 of 6 the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
The Commission also observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and to venture into the merits of a case or redressal of grievance. The Commission in a plethora of decisions including Shri Vikram Singh v. Delhi Police, North East District, CIC/SS/A/2011/001615 dated 17.02.2012 Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow CIC/DS/A/2012/000906 dated 06.09.2012, Mr. H. K. Bansal vs. CPIO & GM (OP), MTNL CIC/LS/A/2011/000982/BS/1786 dated 29.01.2013 had held that RTI Act was not the proper law for redressal of grievances/disputes.
The Hon'ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 had held as under:
"While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions."
Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. vs. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 held as under:
"6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate forum. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."
Moreover, in a recent decision in Govt. of NCT vs. Rajendra Prasad WP (C) 10676/2016 dated 30.11.2017, the Hon'ble High Court of Delhi had held as under:
6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes.
7. In the present case, it is apparent that CIC had decided issues which were plainly outside the scope of the jurisdiction of CIC under the Act. The limited scope of examination by the CIC was: (i) whether the information sought for by the respondent Page 4 of 6 was provided to him; (ii) if the same was denied, whether such denial was justified; (iii) whether any punitive action was required to be taken against the concerned PIO; and (iv) whether any directions under Section 19(8) were warranted. In addition, the CIC also exercises powers under Section 18 of the Act and also performs certain other functions as expressly provided under various provisions of the Act including Section 25 of the Act. It is plainly not within the jurisdiction of the CIC to examine the dispute as to whether respondent no.2 was entitled to and was allotted a plot of land under the 20-Point Programme.
A similar view delineating the scope of the Commission's jurisdiction was also taken by the Hon'ble High Court of Delhi in Sher Singh Rawat vs. Chief Information Commissioner and Ors., W.P. (C) 5220/2017 and CM No. 22184/2017 dated 29.08.2017 and in the matter of Shobha Vijender vs. Chief Information Commissioner W.P. (C) No. 8289/2016 and CM 34297/2016 dated 29.11.2017.
The Commission also referred to the decision of the Hon'ble Supreme Court of India in Girish Ramchandra Deshpande vs. Central Information Commission & ors. SLP(C) No. 27734 of 2012 dated 03/10/2012 wherein it was held as under:
"13......The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right."
Furthermore, the Hon'ble Supreme Court of India in the matter of Canara Bank Rep. by its Deputy Gen. Manager v. C.S. Shyam, Civil Appeal No. 22 of 2009 dated 31.08.2017 had held as under:
"5) The information was sought on 15 parameters with regard to various aspects of transfers of clerical staff and staff of the Bank with regard to individual employees. This information was in relation to the personal details of individual employee such as the date of his/her joining, designation, details of promotion earned, date of his/her joining to the Branch where he/she is posted, the authorities who issued the transfer orders etc. etc
11) Having heard the learned counsel for the appellant and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned order and dismiss the application submitted by the 1st respondent under Section 6 of the Act.
12) In our considered opinion, the issue involved herein remains no more res integra and stands settled by two decisions of this Court in Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794, 5 it may not be necessary to re-examine any legal issue urged in this appeal.Page 5 of 6
14) In our considered opinion, the aforementioned principle of law applies to the facts of this case on all force. It is for the reasons that, firstly, the information sought by respondent No.1 of individual employees working in the Bank was personal in nature;
secondly, it was exempted from being disclosed under Section 8(j) of the Act and lastly, neither respondent No.1 disclosed any public interest much less larger public interest involved in seeking such information of the individual employee and nor any finding was recorded by the Central Information Commission and the High Court as to the involvement of any larger public interest in supplying such information to respondent No.1."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the aforesaid judgement, no further intervention of the Commission is warranted.
The Appeal stands disposed accordingly.
(Bimal Julka) (बिमल जुल्का) (Chief Information Commissioner) (मुख्य सूचना आयुक्त) Authenticated true copy (अभिप्रमाणित सत्यापित प्रतत) (K.L. Das) (के .एल.दास) (Dy. Registrar) (उप-पंजीयक) 011-26186535/ [email protected] ददनांक / Date: 16.04.2020 Page 6 of 6