Central Information Commission
S. Haja Najeemudden vs Central Vigilance Commission on 12 May, 2022
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/CVCOM/A/2021/612059
S Haja Najeemudden ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Central Vigilance Commission,
RTI Cell, A-Block, GPO Complex,
Satarkata Bhavan, INA, New Delhi - 110023. .... ितवादीगण /Respondent
Date of Hearing : 18/04/2022
Date of Decision : 09/05/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 26/11/2020
CPIO replied on : 11/12/2020
First appeal filed on : 06/01/2021
First Appellate Authority order : 03/02/2021
2nd Appeal/Complaint dated : 01/04/2021
Information sought:
The Appellant filed an RTI application dated 26.11.2020 seeking the following information regarding Complaints against the ICAR Vigilance for having conducted 'fake and fraudulent' Inquiry held against Dr. A. Gopalakrishnan, Director, CMFRI, Cochin, for having recruited 124 SSS staff in CMFRI, Cochin, without any approval from ICAR and Dept. of Expenditure, Govt. of India:1
"I am filing this RTI application to know the outcome of the CVC examination/decision on the Report sent by ICAR on the unauthorized recruitment of 124 SSS staff at a time in CMFRI, Cochin, without any approval from ICAR and Dept. of Expenditure, Govt. of India, as it is rumored that the matter is closed with the approval/consent of the CVC. Huge money is involved in this scam as explained in Ref. Nos. 5 and 7. In response to my grievance (DOPAT/E/2019/04937 31/10/2019) filed in the PG Portal, it was intimated to me by the CVC that a report as asked by the CVC vide OM dated 14.05.2018, has been received from CVO, ICAR on 10.12.2019 at CVC and the same has been under examination in the CVC. From 2019 onwards, I have been requesting the CVC to kindly take a decision on the ICAR report on the above said scam but there is no reply from the CVC. CVC has been keeping the complainant in gussing.
Now, it is rumored that the matter is closed with the approval/consent of the CVC in spite of huge money is involved and Govt of India Audit Report, which constrained me to file this RTI application.
From the very beginning CVC has been very reluctant to deal this scam. ICAR also made evident that it is having 'vested interest' in suppressing the information about the enquiry against unauthorized 124 SSS recruitment done at a time at CMFRI, Cochin during 2015, without any approval of the Dept. of Expenditure (Govt. of India) and ICAR. On the other hand, ICAR has been harassing this applicant from various angle for having filed complaints against this scam and other scams. CVC also remained mute spectator on those harassment.
1) 'Corruption' and 'irregularity' committed will not come under "job duties", "execution of the required tasks" and 'performance of an employee. But they are purely a misconduct/s which is/are to be dealt strictly with Conduct Rules.
2) Here, the complaints with solid proof are filed by me (RTI applicant) against the above said unauthorized recruitment with CVC and ICAR. I as the first and direct complainant, have every right to know the details of the enquiry, report and final decision as per following Hon'ble Court and Hon'ble CIC decisions.
3) A significant decision in the case of Nabarun Mazumdar vs. National Technology Research Organization (CIC/WB/C/2006/00221 dt.
23.2.2007) wherein the Hon'ble CIC held that 'even the intelligence 2 organizations are not exempted from disclosing information in cases relating to allegations of corruption and human rights violation'.
4) Hon'ble High Court of Delhi in the matter of Kamal Bhasin v. Radha Krishna Mathur and Ors., (W.P.(C) 7218/2016 dated 01-11-2017) held:"6. In the present case, the petitioner stands as a relator party as he is also one of the complainants. The petitioner is not seeking any personal information regarding respondent No. 3, but merely seeks to know the outcome of the complaint made by him and other such complaints. .... In the circumstances, this Court directs the respondent to disclose to the petitioner as to what action had been taken pursuant to his complaint and other similar complaints made against the then CMD'.
5) In the order dated 18/06/2013 (File No. CIC/RM/A/2012/000926 Sh. Ved Prakash Doda v/s ITO), Hon'ble CIC held : "It has been the stand of the Commission that in respect of a tax evasion petition, once the investigation is completed, the appellant should be informed the broad results of the investigation, without disclosing any details. The appellant has a right to know as to whether the information provided by him was found to be true or false."
6) Hon'ble CIC, in 'Mohd Naeem Ahmed vs. CPIO, ITO, CRU, New Delhi and CPIO, ITO, Ward 56 (1), New Delhi in CIC/CC/A/2015/004382/BS/10949 dated 29.07.2016' held :"In the matter at hand investigation/assessment is in progress. The CPIO/ITO Ward 56(1) should disclose the broad outcome of the TEP to the appellant as soon as the assessment is completed." While upholding this decision , the Hon'ble High Court of Delhi in the matter of Mohd. Naeem Ahmed vs. Director of Income Tax and Ors, WP (C) 1112/2018 dated 27.03.2019 held": 'It goes without saying that in terms of the direction of the CIC, the CPIO / ITO of the Ward concerned is / are required to disclose the broad outcome of the TEP to the petitioner herein. There is no reason to disbelieve that they shall not disclose the same after the investigation / assessment is over'.
9. Hon'ble CIC in CIC/CCITM/A/2018/113445-BJ dt. 07-10-2019 (Sangeeta R. Sharma V. CPIO, ITO (Hq.), Office of the Directorate General of Income Tax (Inv.), 3rd Floor, Scindia House, Ballard Estate, Mumbai - 400038), CIC/CCITD/A/2018/612826-BJ dt. 17-05-2019 (Ankit Gupta V. CPIO & Income Tax Officer, Ward 60 (3), Office of the Income Tax Officer, Room No.304 B, 3rd Floor, D Block, Vikas Bhawan, New Delhi - 110002, CIC/DGITJ/A/2017/608047-BJ dt. 10-04-2019 (Dushyant Singh Tanwar V. CPIO, Chief Commissioner of Income Tax (Inv.), Office of the Director General of Income Tax (Inv.), N C R Building, Statue Circle, Jaipur - 302005 3 and CIC/DOREV/A/2016/300616-BJ dt.13-10-2017 (Birjesh Verma V. CPIO, Income Tax officer, Ward-2(2), Faridabad) ordered that "the broad outcome of the investigation should be disclosed to the Appellant as soon as the investigation is completed."
10. Hon'ble CIC in the decision of Shri Virag R. Dhulia v. Income Tax Department, Kolkata in CIC/LS/A/2009/001179 dated 18.02.2010 held that " it is to be noted that investigation into a TEP cannot be allowed to go on ad-infinitum and that it should be concluded in a reasonable time frame whereafter the broad outcome thereof needs to be communicated to the appellant i.e. whether the allegations made in the TEP are fully true, partially true or untrue. Moreover, there are umpteen number of similar decisions which ordered various CPIOs of your Department to supply the information about the broad outcome of the investigation to the appellant (complainant) as soon as the investigation is completed, to quote, for your kind attention. If necessary, I may be asked to send.
7) When Hon'ble CIC and Hon'ble Courts orders an exempted organization like Income TAX Dept., to supply information on the enquiry/investigation report to the complainant, the above said decisions are invariable binding on CVC. CVC need not to suppress the unauthorized 124 SSS recruitment done at a time at CMFRI, Cochin during 2015, without any approval of the Dept. of Expenditure (Govt. of India) and ICAR.
8) Since Dr. Gopalakrishnan, Director, CMFRI, Cochin, is claiming that he has not faced any enquiry, I am constrained to doubt the veracity and conduct of the enquiry and enquiry Report submitted by the ICAR to the CVC.
9) Since, the irregularity of recruiting 124 SSS is said to have been closed with the approval of the CVC, those information on the report and decision of the CVC and the grounds on which CVC has taken the decision to close the 'matter' may please be supplied to me, the complainant.
10) The Supreme Court in SLP (C) no. 27734/2012, further held that such information could be disclosed only if it would serve a larger public interest. 'Corruption and irregularity' eat the organization and morale of the employees. Iron hands are required to curb and eradicate those crimes. Supply of information on curbing those menaces in the organization would be a fitting lesson to wrong doers and wrong planners and certainly has larger public and National interest.
11) A huge money is said to be involved in this recruitment scam according to certain contents of O.A. No. 740/2018 pending before the Hon'ble CAT, Ernakulam Bench and the 6th respondent (Director, CMFRI, Cochin) of this 4 O.A., was one of the beneficiaries of those appointments. Even then the enquiry is closed just like that. It shows the 'quality' of the enquiry.
12) In view of the above, I request the CPIO, CVC, to kindly supply the required information in item No.9, at an early date as the matter is said to have been closed long back."
The CPIO replied to the appellant on 11.12.2020 stating that 'the matter regarding irregularities of recruiting 124 SSS was referred for investigation and report to the CVO, ICAR. On the receipt of the report from the CVO, ICAR, the matter was examined in the Commission and Commission after examining the same, in agreement with CVO, ICAR and DA, ICAR had advised closure of the complaint.' The CPIO further denied the file noting(s) stating that the decision of CVC and the ground on which the CVC has decided to close the matter cannot be provided as per section 11(1) & 2(n) of the RTI Act, 2005.
Being dissatisfied, the appellant filed a First Appeal dated 06.01.2021. FAA's order dated 03.02.2021 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video conference.
Respondent: T P Sharma, OSD & CPIO present through intra-video conference.
The Appellant relied on his written submissions wherein the following has been stated:
"1. There was a recruitment scam in CMFRI (Central Marine Fisheries Research Institute), Cochin. CMFRI (which come under ICAR - Min of Agriculture), unauthorizedly and unlawfully recruited 124 SSS staff at a time without any sanction/permission of Dept. of Expenditure (Min of Finance) which banned creation of new posts and filling of posts then.
2. Besides Dept of Expenditure, ICAR also did not give any permission/sanction for filling up of the posts in CMFRI, a unit of ICAR.
3. ICAR supplied me information under RTI Act that it did not give any permission to recruit 124 SSS staff by CMFRI. A true copy of the ICAR letter is enclosed as Annexure - 1.5
4. Even after the hasty closure of my complaint by the CVC in 2020, ICAR vide its letter dated 27-08-2021 once again reiterated what was recorded in Annexure I that ICAR also did not give any permission/sanction for filling up of the posts in CMFRI. True copy of the ICAR letter dated 27-08-2021, is enclosed.
5. Therefore, it is once again proved that the recruitment for 124 SSS posts had been conducted without any sanction and approval of Dept of Expenditure and ICAR, and wilfully conducted the recruitment for their mutual benefits. CVC did not consider this most important factor because of unholy relations between certain CVC and ICAR officials.
6. CVC is established by the Govt of India, for taking actions against Government servant/s who committed an offence under the Prevention of Corruption Act, 1988 and to stop corruption in the Central Govt establishments.
7. CVC is not established to promote or endorse the corrupt act willfully done for mutual benefits and protect the wrong doers.
8. Sections 8 and 11 of CVC Act, empower CVC to conduct inquiry against corrupt activity. However for the reasons best known to CVC, it has not conducted any enquiry or investigation or proper examination.
9. As per Section 17(2) of the CVC Act, CVC is to take a decision after taking into consideration of any other 'factors' relevant for advising the Central Govt Dept. CVC for the reasons best known to it, did not consider the 'relevant factor' such as no sanction/approval/permission from Dept. of Expenditure and ICAR.
10. Therefore, CVC has not performed its duties entrusted by the CVC Act but intentionally violated its own CVC Act by intentionally ignoring the fact mentioned in para no.9.
There should be some compelling reasons for its negation of duties or else CVC would not have normally prevented itself from examining the relevant factors and left everything to the discretion of the Chief Vigilance Officer of ICAR for taking a 'desired' or pre-planned decision in respect of recruitment scam for saving the erred officials. Or else there is no necessity for the CVC to suggest vide its letter dated 28-09-2020 (true copy is enclosed) a system improvement to ensure rate reasonableness by 'tender committee' before recommending acceptance of an offer, which is not at all related to any kind of recruitment process.
11. In short CVC has willfully erred because of unholy relations between certain CVC and ICAR officials.
12. CVC also willfully ignored the pending CAG audit objections and advised to close the complaint for the above mentioned reason.
13. Hon'ble High Court of Delhi in the matter of Kamal Bhasin v. Radha Krishna Mathur and Ors., (W.P.(C) 7218/2016 dated 01-11-2017) held:"6. In the present case, the petitioner stands as a relator party as he is also one of the complainants. The petitioner is not seeking any personal information regarding respondent No. 3, but merely seeks to know the outcome of the 6 complaint made by him and other such complaints. .... In the circumstances, this Court directs the respondent to disclose to the petitioner as to what action had been taken pursuant to his complaint and other similar complaints made against the then CMD'.
14. In the order dated 18/06/2013 (File No. CIC/RM/A/2012/000926 Sh. Ved Prakash Doda v/s ITO), Hon'ble CIC held : "It has been the stand of the Commission that in respect of a tax evasion petition, once the investigation is completed, the appellant should be informed the broad results of the investigation. The appellant has a right to know as to whether the information provided by him was found to be true or false."
15. The Supreme Court in SLP (C) no. 27734/2012, further held that such information could be disclosed only if it would serve a larger public interest. 'Corruption and irregularity' eat the organization and morale of the employees. Iron hands are required to curb and eradicate those crimes. Supply of information on curbing those menaces in the organization would be a fitting lesson to wrong doers and wrong planners and certainly has larger public and National interest.
16. Hon'ble CIC in Appeal No. CIC/OK/C/2006/00048 DT.03-07- 2006 held that "the case had prima facie evidence of forgery, impersonation, and falsification of documents. To establish the truth, therefore, it was necessary that all the documents regarding Dr. Vankayalpati be made available to the appellants". Similarly, corruption, unholy relations, violation of Govt orders & CVC Act, irregularities, suppressing of facts, fraudulent enquiry, misuse of power and authority to save the master mind of the recruitment scam, are involved in this recruitment scam. Therefore, this matter is definitely in the larger public interest and is covered by Section 8(2) of the RTI Act.
17. CVC has no claim that ICAR letters Annexure-1, 27-08-2021 and CVC letter dated 28- 09-2020, are false/ incorrect/ forged. CVC has no claim that CVC is above the Dept. of Expenditure, the recruitment of 124 SSS had been done with the permission/sanction/ approval of the Dept. of Expenditure and ICAR or on the basis of tender. Then how CVC advised to close the complaint against a recruitment scam, is a million-dollar question.
18. Therefore, from the above, it is very clear that CVC has acted in a surprising if not in a bizarre manner, willfully ignoring its responsibilities and duties entrusted by the CVC Act.
19. The above said lapses of the CVC clearly suggest the unholy relations between certain CVC and ICAR officials. In these circumstances, I most humbly pray before the Hon'ble CIC to kindly order CPIO, CVC to
(a) supply all the details about the examination done by the CVC,
(b) supply the reasons for taking administrative decision to close the matter without considering the relevant factor and pending audit, including 'file note' and correspondences between CVC, ICAR and CMFRI,
(c) ORDER to clarify CVC's status/authority over CAG objections
(d) Impose penalty for suppressing the facts/information and
(e) award compensation for having inflicted mental agony and time loss."
7The CPIO submitted that the Appellant has sought for the ICAR report and vigilance noting(s) based on which his complaint was closed but both these records relate to a third party and are confidential in nature hence the same was denied to the Appellant.
The Appellant interjected to state that if the CVC had closed the complaint as per rules, he would not have questioned their decision but he believes there has been a gross violation of CVC rules and regulations and the complaint has been closed hastily with a malafide intention to cover up a huge scam costing the public exchequer a substantial amount.
Decision:
The Commission based on a perusal of the facts on record observes at the outset that the RTI Application and Second Appeal of the Appellant contain mere narration of facts and arguments questioning the merits of the closure of his complaint against Dr. A. Gopalakrishnan, Director, CMFRI, Cochin, for the alleged recruitment of 124 SSS staff in CMFRI, Cochin, without any approval from ICAR and Dept. of Expenditure, Govt. of India. It is also pertinent to note that the Appellant has not even sought for any information as per Section 2(f) of the RTI Act in the RTI Application except at point 9, where there is a vague mention of the desired information. Considering the said aspect, the CPIO's reply indicating the status/outcome of the action taken on the averred complaint suffices the instant RTI Application. Further, through his written submissions, the Appellant has merely supplemented the factual narrative referred to in the RTI Application by questioning the closure of his complaint in a rhetorical manner, thus leading to additional queries at para 19 as mentioned above.
The CPIO & FAA have denied the file noting(s) citing confidentiality of vigilance noting(s) but in a strict sense, the Appellant has not even sought for any file noting(s) or the report per se in his RTI Application. Even if the said import was accorded to the RTI Application by the CPIO & FAA, the fact remains that the CPIO & FAA have failed to invoke any exemption clause of Section 8 of the RTI Act to deny the information, while the provisions of Section 11 and 2(n) cited by them are mere procedural provisions of the Act.
Now, notwithstanding the technical defect in the RTI Application or the inadequacies in the CPIO's reply or FAA's order citing denial of file notings, looking at the gravity of the allegations levelled by the Appellant concerning a 8 large-scale recruitment by a public authority evoking larger public interest and his apparent inability in framing the RTI Application in a cogent manner, the Commission takes an empathetic and lenient view in the matter. In doing so, the CPIO is directed to inform the Appellant in writing a brief synopsis of the findings mentioned in the averred ICAR report and the grounds on which the closure of the complaint was recommended without disclosing any names or identifying particulars of third parties that stand exempted from disclosure under Section 8(1)(j) and 8(1)(g) of the RTI Act.
The above directions shall be complied with by the CPIO within 15 days from the date of receipt of this order under due intimation to the Commission.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 9