Central Information Commission
Sugandha Gupta vs Chief Commissioner Of Income Tax (Cca) , ... on 12 April, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.(s):- CIC/DOREV/A/2017/179455-BJ+
CIC/CCITM/A/2018/106126-BJ
Ms. Sugandha Gupta
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
Under Secretary, Ministry of Finance
Department of Revenue, Central Board of Direct Taxes
North Block, New Delhi - 110001
... ितवादीगण /Respondent
Date of Hearing : 11.04.2019
Date of Decision : 12.04.2019
ORDER
RTI -1 File No. CIC/DOREV/A/2017/179455-BJ Date of RTI application 13.07.2017 CPIO's response 12.10.2017 Date of the First Appeal 24.10.2017 First Appellate Authority's response 25.10.2017 Date of diarised receipt of Appeal by the Commission 24.11.2017 FACTS:
The Appellant vide her RTI application sought information regarding the Moveable and Immovable Property of her husband Sh. Lovish Kumar, IRS holding the post of JCIT, Judicial, Mumbai given to the department from 2007 till date, details of latest salary alongwith the allowances payable to him, arrears received on account of 7th Pay Commission, etc. The CPIO, vide its letter dated 12.10.2017 stated that the information sought related to a third party who had denied his consent for the disclosure of information. Thus, in accordance with Section 11 (1 and 2) of the RTI Act, 2005, the information was denied. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 25.10.2017 concurred with the response of the CPIO.
Page 1 of 8
RTI - 2 File No. CIC/CCITM/A/2018/106126-BJ
Date of RTI application 13.07.2017
CPIO's response 10.10.2017
Date of the First Appeal 24.10.2017
First Appellate Authority's response 27.11.2017
Date of diarised receipt of Appeal by the Commission 29.01.2018
FACTS:
The Appellant vide her RTI application sought information regarding the Moveable and Immovable Property of her husband Sh. Lovish Kumar, IRS holding the post of JCIT, Judicial, Mumbai given to the department from 2007 till date, details of latest salary alongwith the allowances payable to him, arrears received on account of 7th Pay Commission, etc. The CPIO, vide its letter dated 10.10.2017 denied disclosure of information u/s 8 (1) (j) of the RTI Act, 2005. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 25.10.2017 while concurring with the response of the CPIO inter alia stated that the Appellant had not disclosed whether any order had been passed by the Hon'ble Courts on the issue of maintenance. It was also stated that the instant case the Appellant was not able to demonstrate any larger public interest in seeking the information.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Aakash Sherwal (Adv) representing Appellant, in person; Respondent: Mr. K. C. Patra, US, New Delhi in person; and Mr. Ramesh Kumar, ITO & CPIO, Mumbai through VC;
The Appellant's representative reiterated the contents of the RTI application and stated that the information sought was incorrectly denied by the Respondents on the ground that it was Third Party information. He referred to the written submissions dated 04.04.2019 and stated that the Appellant required the information in order to contest a matrimonial dispute and that being the wife of Sh. Lovish Kumar, IRS, she could not be treated as a third party. During the hearing, the Appellant's representative also made a reference to the decision of the Hon'ble High Court of M. P. in the matter of Smt. Sunita Jain v. Pawan Kumar Jain W.A. No. 168/2015 and Smt. Sunita Jain v. Bharat Sanchar Nigam Limited W.A. No. 170/2015 dated 15.05.2018 in support of their contention and stated that as per Section 4 (1) (b) (x) of the RTI Act, 2005, the monthly remuneration of officers and employees ought to be disclosed in the Public Domain. In its reply, the Respondent re-iterated the reply of the CPIO/ FAA and submitted that the Third Party objected to the disclosure of his personal information hence the information was denied u/s 8(1)
(j) and Section 11 (1) and (2) of the RTI Act, 2005 and no larger public interest warranting its disclosure was justified by the Appellant. The Commission drew his attention to the judgment of High Court of Madhya Pradesh, Jabalpur in of Smt. Sunita Jain v. Pawan Kumar Jain W.A. No. 168/2015 and Smt. Sunita Jain v. Bharat Sanchar Nigam Limited W.A. No. 170/2015 dated 15.05.2018. However, the Respondent feigned ignorance of the same. On being queried by the Commission regarding the OM No. 11013/3/2011-Estt A-IV dated 11.04.2011 issued by the DoP&T pertaining to placing the Immovable Property Returns filed by officers of Group A Page 2 of 8 Central Services on the public domain, the Respondent confirmed the same and stated that such details were disclosed periodically on their website.
The Commission was in receipt of a written submission from the Appellant dated 04.04.2019 wherein it was stated that the information sought had to be disclosed as per the decision of the Commission in the case of Prashansa Sharma v Delhi Transco Ltd. No. CIC/SA/A/2014/000433 decided on 03.02.2015 relying upon the judgment of the Hon'ble Delhi High Court in Kusum Sharma versus Mahender Kumar Sharma wherein it was held that the information about assets, income and investments of spouses was no more private or personal information as against spouses, even if that information could be personal or private information as against any person other than spouse. The proviso to Section 8 (1) (j) read with Section 8 (2) of the Right to Information Act entitled the Appellant to get information which she sought because of overwhelming public interest in securing the lives of deserted wives. It was stated that her case was squarely covered by the aforementioned decision of the Commission as she being the wife was seeking information about the income and assets of her husband. However, the Respondent vide order dated 10.10.2017 illegally denied the information. The First Appellate Authority in its order has held that Appellant has not disclosed the 'facts and status' of the maintenance and no document has been filed by the Appellant to support her claim. It was submitted that she had categorically stated that she has filed maintenance cases for herself and her minor son master Kaustubh Kumar pending before the Competent Court in the Right to Information Application. The judgment of Hon'ble Supreme Court in Justice K. S. Puttaswamy's case was not relevant to the present case as there was no privacy between husband and wife regarding the salary of the husband. The First Appellate Authority had illegally held that no bona fide public interest was involved and there would be unwarranted invasion of privacy of her husband, which was totally in derogation of the judgment. Similarly, she also referred to the judgement of the Division Bench of the Hon'ble High Court of M. P. in the matter of Smt. Sunita Jain v. Pawan Kumar Jain W.A. No. 168/2015 and Smt. Sunita Jain v. Bharat Sanchar Nigam Limited W.A. No. 170/2015 dated 15.05.2018 in support of her contention. Moreover, her husband had himself sought information regarding the pay, allowances and other facilities granted by her Employer State Bank of India. Thus, on the one hand her husband was himself seeking information from her Employer and on the other hand the Respondent was denying similar information to her. It was, therefore, prayed to impose maximum penalty and recommend disciplinary action against the PIO for suppression of information, penalty on her husband Mr. Lovish Kumar, for obstructing the information, compensation / costs to her and direction to the PIO to furnish the correct, complete and truthful information point-wise to her along with necessary certified copies immediately.
The Commission was also in receipt of a written submission from the Respondent (Mumbai) in CIC/CCITM/A/2018/106126-BJ dated 04.04.2019 wherein while re-iterating the reply of the CPIO/ FAA, it was stated that the Commission in Appeal No. CIC/DOHIN/A/2017/192101-BJ dated 22.12.2017 in the case of Ms. Kamini Tiwari vs. CPIO decided not to intervene in the matter after taking into consideration the judgement of Hon'ble Karnataka High Court in the matter of Income Tax Officer and CPIO vs. Smt. Jammula Padma Manjari WP 18778/ 2017 dated 28.04.2017 wherein the Hon'ble High Court had granted an interim stay on the decision of the Commission which involved similar issues pertaining to disclosure of information of spouses in a matrimonial dispute. Hence, in view of the aforementioned decisions, it was prayed to uphold the response of the CPIO/ FAA.
Page 3 of 8The 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 Vs. Aditya Bandopadhyay), 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 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 Page 4 of 8 to give any reasons as to why he had taken such a decision in the matter which was before him."
At the outset, the Commission referred to the judgment 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."
14. The details disclosed by a person in his income tax returns are "personal information" which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information."
However, making a distinction with the said judgment, the Division Bench of the Hon'ble High Court of M.P. in the matter of Smt. Sunita Jain vs. Pawan Kumar Jain and others W.A. No. 168/2015 and Smt. Sunita Jain vs. Bharat Sanchar Nigam Limited and others W.A. No. 170/2015 dated 15.05.2018 had in a matter where the information seeker had sought the salary details of her husband held as under:
"While dealing with the Section 8(1)(j) of the Act, we cannot lose sight of the fact that the appellant and the respondent No.1 are husband and wife and as a wife she is entitled to know what remuneration the respondent No.1 is getting.
Present case is distinguishable from the case of Girish Ramchandra Deshpande (supra) and therefore the law laid down by their Lordships in the case of Girish Ramchandra Deshpande (supra) are not applicable in the present case.
In view of the foregoing discussion, we allow the appeal and set aside the order passed by the Writ Court in W.P. No.341/2008. Similarly, the W.A. No.170/2015 is also allowed and the impugned order passed in W.P. No.1647/2008 is set aside."
Moreover, the Hon'ble High Court of Bombay (Nagpur Bench) in the matter of Rajesh Ramachandra Kidile vs. Maharashtra SIC and Ors in W.P. No. 1766 of 2016 dated 22.10.2018 held as under:
"8. Perusal of this application shows that the salary slips for the period mentioned in the application have been sought for by the Advocate. As rightly submitted by the learned counsel for the petitioner, the salary slips contain such details as deductions made from the salary, remittances made to the Bank by way of loan instalments, remittances made to Page 5 of 8 the Income Tax Authority towards part payment of the Income Tax for the concerned month and other details relating to contributions made to Provident Fund, etc. It is here that the information contained in the salary slips as having the characteristic of personal nature. Any information which discloses, as for example, remittances made to the Income tax Department towards discharge of tax liability or to the Bank towards discharge of loan liability would constitute the personal information and would encroach upon the privacy of the person. Therefore as held by the Hon'ble Apex Court in the case of Girish Ramachandra Deshpande (supra) such an information could not be disclosed under the provisions of the RTI Act. This is all the more so when the information seeker is a person who is totally stranger in blood or marital relationship to the person whose information he wants to lay his hands on. It would have been a different matter, had the information been sought by the wife of the petitioner in order to support her contention in a litigation, which she filed against her husband. In a litigation, where the issue involved is of maintenance of wife, the information relating to the salary details no longer remain confined to the category of personal information concerning both husband and wife, which is available with the husband hence accessible by the wife. But in the present case, as stated earlier, the application has not been filed by the wife."
With regard to the imposition of penalty on the CPIO/PIO under Section 20 of the RTI Act, 2005, the Commission took note of the ruling of Hon'ble Delhi High Court in W.P.(C) 11271/2009 Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr. (delivered on:
01.06.2012) wherein it was held:
" 61. Even if it were to be assumed for the sake of argument, that the view taken by the learned Central Information Commissioner in the impugned order was correct, and that the PIOs were obliged to provide the information, which was otherwise retrievable by the querist by resort to Section 610 of the Companies Act, it could not be said that the information had been withheld malafide or deliberately without any reasonable cause. It can happen that the PIO may genuinely and bonafidely entertain the belief and hold the view that the information sought by the querist cannot be provided for one or the other reasons. Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a showcause notice under Section 20 of the RTI Act and the imposition of penalty. The legislature has cautiously provided that only in cases of malafides or unreasonable conduct, i.e., where the PIO, without reasonable cause refuses to receive the application, or provide the information, or knowingly gives incorrect, incomplete or misleading information or destroys the information, that the personal penalty on the PIO can be imposed. This was certainly not one such case. If the CIC starts imposing penalty on the PIOs in every other case, without any justification, it would instill a sense of constant apprehension in those functioning as PIOs in the public authorities, and would put undue pressure on them. They would not be able to ful fill their statutory duties under the RTI Act with an independent mind and with objectivity. Such consequences would not auger well for the future development and growth of the regime that the RTI Act seeks to bring in, and may lead to skewed and imbalanced decisions by the PIOs Appellate Authorities and the CIC. It may even lead to unreasonable and absurd orders and bring the institutions created by the RTI Act in disrepute."Page 6 of 8
Similarly, the following observation of the Hon'ble Delhi High Court in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 are pertinent in this matter:
"17. This Court takes a serious note of the two year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought. However, the Petitioner has not been able to demonstrate that they malafidely denied the information sought. Therefore, a direction to the Central Information Commission to initiate action under Section 20 of the Act, cannot be issued."
Furthermore, the High Court of Delhi in the decision of Col. Rajendra Singh v. Central Information Commission and Anr. WP (C) 5469 of 2008 dated 20.03.2009 had held as under:
"Section 20, no doubt empowers the CIC to take penal action and direct payment of such compensation or penalty as is warranted. Yet the Commission has to be satisfied that the delay occurred was without reasonable cause or the request was denied malafidely.
......The preceding discussion shows that at least in the opinion of this Court, there are no allegations to establish that the information was withheld malafide or unduly delayed so as to lead to an inference that petitioner was responsible for unreasonably withholding it."
The Commission also observed that the Hon'ble High Court of Delhi in the matter of R.K. Jain v. V.P. Pandey, CPIO, CESTAT, New Delhi in W.P. (C) No. 4785/ 2017 dated 10.10.2017 adjudicated on the correctness of an order of the Commission dated 17.04.2017 whereby the Respondent was cautioned to exercise due care in future and to ensure that correct and complete information is furnished to the RTI applicants. It was decided that:
"2. The grievance of the petitioner is that although the CIC had accepted that there was a delay in providing the necessary information to the petitioner, the CIC had not imposed the penalty as required under Section 20(1) of the Right to Information Act, 2005. It is well settled that imposing of the penalty is a discretionary measure. In Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 a division bench of this Court had considered the question whether the levy of penalty was discretionary and held as under..........
3. In this case it is apparent that the CIC had in its discretion considered that a order cautioning the CPIO would be sufficient. This Court is not inclined to interfere with such exercise of discretion."
Furthermore, the Hon'ble High Court in the matter of R.K. Jain v. CIC and Anr. in W.P.(C) 4152/2017 dated 10.10.2017 had held as under:
"5. The question whether the CIC had the discretion to restrict the penalty or whether penalty as provided under Section 20 of the Act is mandatory, is no longer res integra. The said question was considered by a Division Bench of this Court in Anand Bhushan v.Page 7 of 8
R.A. Haritash: ILR (2012) 4 Delhi 657 and the relevant extract of the said decision is set out below....
6. In view of the above, this Court finds no reason to interfere with the discretion exercised by the CIC. The petition is, accordingly, dismissed."
Having considered the aforesaid judgments passed by Hon'ble High Court of Jabalpur and Bombay consequent upon the decisions of the Commission referred to by the Respondent in their oral and written averments, the Commission relied upon the latter judgments of 2018. DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the decisions cited above, the Commission instructs the Respondent (CPIO) to re- examine the response of the Public Authority in the light of the aforesaid judgments and provide information to the Appellant respecting the decision of the High Court of Madhya Pradesh, Jabalpur in Smt. Sunita Jain v. Pawan Kumar Jain W.A. No. 168/2015 and Smt. Sunita Jain v. Bharat Sanchar Nigam Limited W.A. No. 170/2015 dated 15.05.2018 and the OM issued by the DoP&T dated 11.04.2011 to the Appellant within a period of 15 days from the date of receipt of this order and endorse a copy of the said decision to the Commission also.
The Appeals stand disposed accordingly.
Bimal Julka (िबमल जु का)
Information Commissioner (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 12.04.2019
Copy to:-
1. The Pr. Chief Commissioner of Income Tax, Room No. 356, Central Revenue Building, I. P. Estate, New Delhi - 110002
2. The Pr. CCIT, Mumbai, O/o Room No. 321, Aayakar Bhawan, M.K. ROAD, Mumbai-400020 Page 8 of 8