Central Information Commission
Mr.B S Mathur vs High Court Of Delhi on 6 September, 2010
CENTRAL INFORMATION COMMISSION
Appeal Nos. CIC/WB/A/2009/000203 dated 25-2-2009; WB/A/2010/00314 &
315 dated 13-8-2010
Right to Information Act 2005 - Section 19 (3)
Appellant: Shri B.S. Mathur
Respondent: High Court of Delhi
Appeal heard 30.8.'10
Decision announced 31.8.'10
FACTS
By an application of 19-8-08 Shri B.S. Mathur, Addl. District & Session Judge, Delhi applied to the `authorised person' of Registry of the High Court of Delhi seeking the information on the following 12 points:
(i) "Copy of directions of Committee of Hon'ble Inspecting Judges allowing Registrar (Vig) to scrutinise personal file of applicant containing intimations supplied under the Conduct Rules.
(ii) Copy of the report of the Registrar (Vig.) dated 06/02/2008 in compliance of (i) above.
(iii) Copy of the minutes of the meeting of the committee of Hon'ble the Inspecting Judges dated 14/2/2008.
(iv) Copy of the minutes of the meeting of the committee of Hon'ble the Inspecting Judges held on 03/04/2008.
(v) Copy of the minute of the meeting of the committee of Hon'ble the Inspecting Judges dated 14/05/2008.
(vi) Copy of the minutes of the meeting of the Administrative Committee held on 19/5/2008.
(vii) Copies of the comments and / or material supplied/ placed before the committee of Hon'ble the Inspecting Judges.
(viii) Copies of the comments and / or material supplied/ placed before Hon'ble the Full Court prior to its meeting dated 26/05/2008.
(ix) Copies of the Agenda and the minutes of Hon'ble the Full Court held on 26/05/2008.
(x) Copy of the minutes/ decision of the Committee headed by Hon'ble the Chief Justice in connection with the reply of letters dated 20/2/2008, held on 29/5/2008.
(xi) Subject and date wise list of all the intimations submitted by the applicant to the Hon'ble High Court from time to time since the date of his joining service till date.
(xii) Copy of the minutes / decision of the Committee of Hon'ble the Inspecting Judges held post intimation dated 1/6/2007 by the applicant."
To this he received a response dated 14-9-08 from PIO, Shri P.S. Chhagad refusing the information u/s 8 (1) (h) of the Act as below:
1"The information sought by you cannot be supplied as the same is exempt under Section 8(1)(h) of the right to Information Act, 2005 read with Rule 5 (b) of Delhi High Court (Right to Information) Rules, 2006."
Upon this Shri Mathur moved an appeal before Appellate Authority, Delhi High Court, of which we do not have a copy on file. In response, by his order of 31-10-08 Appellate Authority Shri Kalam Singh, has ruled as follows:
"I have gone through the records of this case as well as the grounds of the appeal submitted by the appellant.
Documents asked for by the appellant, referred at Serial No. (xi), are nothing but the copies of the intimation submitted by him to the department. There is no reason why the same cannot be supplied to him.
As far as the remaining information is concerned, the submission of the appellant is unfounded inasmuch as the disciplinary authority is still examining the material for holding inquiry. Thus disclosure of any such material at this stage may impede the inquiry. Under service jurisprudence, once disciplinary authority decides to hold enquiry against the appellant, a charge sheet with supporting material will be made available to him and he would have opportunity to defend himself. He will also have an opportunity to seek supply of relevant documents by making appropriate request to the disciplinary authority and/ or inquiry authority. It is for this reason the information as sought for cannot be supplied at this stage and is rightly treated by the Public Information Officer as exempt under Section 8(1)(h) of the Right to Information Act read with Section 5(6) of the Delhi High Court (Right to Information) Rules, 2006 In view of the above, the appeal is partly allowed. The Assistant Public Information Officer is directed to supply to the appellant the copies of the intimation referred to at Serial No. (xi) of this application within seven working days of the passing of this order."
In this ruling Shri Kalam Singh has noted the appellant's contention as below:
"He has contended that "investigation" and "enquiry" are defined in the Cr.P.C. and that the Public Information Officer has not disclosed as to which investigation the information sought would impede since the information sought essentially relates to his service record."2
This has brought Shri B.S. Mathur before us in second appeal with the following prayer:
(a) "allow appeal against order dated 31/10/2008 of the Appellate Authority, High Court of Delhi at New Delhi directing furnishing of information sought for by the appellant vide his RTI Application No. 184/2008.
(b) Award such amount of cost/ penalty/ compensation as may be deemed fit and appropriate for wrongfully withholding information form the appellant.
(c) Pass any such further order as may be deemed fit, proper, necessary and expedient."
Appellant Shri B.S. Mathur's principal grounds for appeal are as follows:
I. "The primary reason for denial of the information sought, as it appears from the rejection Order No. 25080/RTI /DHC 184/08 dated 16/09/2008 is as provided under Section 8(i)(h) of the Act "information which would impede the process of investigation or apprehension or prosecution of offenders". The distinction between the words "investigation" and "inquiry" is well known in law. To begin Section 2(g) of Code of Criminal Procedure defines an inquiry to mean every inquiry a trial conducted under the said code. Section 2(h) of the code however, defined investigation to include all proceedings under this code for collection of evidence conducted by a Police Officer or by any person authorized by the Magistrate in that behalf. Section 8(i)(h) read as a whole makes the intention of the legislature in views of word "investigation" clear with the use of words "prosecution" of offenders that "investigation referred to under Section 8(i)(h)"
essentially relate to investigation into an offence and would not cover within its ambit and inquiry much less a departmental inquiry if any. In case of the appellant, the PIO has not disclosed as to which investigation, the information sought would possible impede as the information strictly related to the service record of the appellant and no investigation against him is pending."
II. "The only ground taken by the Appellate Authority in the impugned order dated 31/10/2008 namely that the information sought by the appellant is being examined by the Disciplinary Authority for initiation of inquiry against the appellant and thus disclosure thereof, at this stage, may impede the inquiry, is non-existent since the disciplinary authority on the date of the impugned order had after examination of the material available, already decided to issue a charge sheet against the appellant wherein the entire list of the documents relied upon in the inquiry has been 3 supplied. The list supplied to the appellant would show that none of the documents/ Information demanded by the appellant have even been relied upon by the disciplinary authority. There is no other inquiry pending or contemplated against the appellant therefore denial of these information on the grounds as taken by the Ld. Appellate Authority of the High Court, amounts to unauthorized concealment of the information."
The appeal was heard on 31-5-2010. The following are present:
Appellant:
Shri B.S. Mathur Respondents Shri Rajiv Bansal, Nominated Counsel, Delhi High Court Shri Gurcharan Singh, Assistant Registrar, Delhi High Court Shri Sudhir Sachdeva, SJA, Delhi High Court Shri Dibyaranjan Gouda, JJA Delhi High Court Learned counsel for respondent Shri Rajiv Bansal submitted that on the date that appellant Shri B.S. Mathur had asked for the information i.e. 19- 8-2008 the matter of initiating enquiry proceedings was under exemption. Hence all the documents concerned with such proceedings would fall within the ambit of exemption claimed u/s 8 (1) (h). Shri Rajiv Bansal further cited a decision of this Commission in Sarvesh Kaushal vs. FCI and Anr.No. 243/IC(PB)/2006 in which this Commission has held as follows with regard to distinction sought to be made between investigation and enquiry in application of exemption u/s 8(1) (h) in departmental proceedings. In this Decision the Commission had held as follows:
8. The CPIOs and AAs have declined to furnish the information applying the provisions of Section 8(1)(h) of the Act, which reads:
"Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen) information which would impede the process of investigation or apprehension or prosecution of offenders".
9. According to the appellant, relying on Cr.PC, the term "investigation"would mean criminal investigation which may result in apprehension or prosecution of offenders and since the CBI has given a clean chit to the appellant, no criminal investigation is pending and departmental proceedings cannot be considered to be investigation to deny documents sought for by him applying the provisions of Section 8(1)(h) of the Act. It is true that the term "investigation" has not been defined in the RTI Act. When a statute does not define a term, it is permissible to adopt the definition given in some other statute. If different 4 definitions are given in different statutes for a particular term, then the one, which could be more relevantly adoptable, should be adopted taking into account the object and purpose of the Statute in which the definition is not available. It is not necessary to confine oneself to only one definition as propounded by the appellant. In the present case, the appellant is a government official and is therefore, bound by the service Rules, which inter alia include the provisions in the Vigilance Manual. As a matter of fact, he got a stay from the CAT only on the basis of the provisions in the Vigilance Manual challenging that in terms of the Manual, departmental investigation cannot go on simultaneously with CBI investigation. His stand before the CAT was that even issue of show cause notice amounted to investigation, while in the present appeals, his stand is that investigation means criminal investigation. One cannot interpret the provisions of a statute according to his own convenience. Be that as it may, as far as the present case is concerned, considering the fact that the appellant is a government servant, the term "investigation" in Section 8(1)(h) has to be interpreted in terms of the Vigilance Manual. I am extracting certain portions of Chapter 4 of the Manual, (2005 Edition) from which it could be seen that the terms "investigation" and "enquiry" have been used analogously, to indicate that investigation need not necessarily mean criminal investigation.1 "4.1.1 As soon as a decision has been taken to investigate the allegations contained in a complaint, it will be necessary to decide whether the allegations should be inquired into departmentally or whether a police investigation is necessary. As a general rule, investigation into the allegations of the types given below should be entrusted to the Central Bureau of Investigation or the Anti-Corruption Branch in the Union Territories: -
(i) Allegations involving offences punishable under law which the Delhi Special Police Establishment are authorised to investigate; such as offences involving bribery, corruption, forgery, cheating, criminal breach of trust, falsification of records, possession of assets disproportionate to known sources of income, etc.
(ii) Cases in which the allegations are such that their truth cannot be ascertained without making inquiries from non-official persons; or those involving examination of non-Government records, books of accounts etc.; and
(iii) Other cases of a complicated nature requiring expert police investigation.1 5
4.1.2 In cases where allegations relate to a misconduct other than an offence, or to a departmental irregularity or negligence, and the alleged facts are capable of verification or inquiry within the department/office; the investigation should be made departmentally. 4.1.3 In certain cases, the allegations may be of both types. In such cases, it should be decided in consultation with the Central Bureau of Investigation as to which of the allegations should be dealt with departmentally and which should be investigated by the Central Bureau of Investigation.
4.3 Once a case has been referred to and taken up by the CBI for investigation, further investigation should be left to them and a parallel investigation by the departmental agencies should be avoided. Further action by the department in such matters should be taken on completion of investigation by the CBI on the basis of their report. However, if the departmental proceedings have already been initiated on the basis of investigations conducted by the departmental agencies, the administrative authorities may proceed with such departmental proceedings. In such cases, it would not be necessary for the CBI to investigate those allegations, which are the subject matter of the departmental inquiry proceedings, unless the CBI apprehends criminal misconduct on the part of the official(s)concerned.4.4 After it has been decided that the allegations contained in the complaint should be investigated departmentally, the vigilance officer should proceed to make a preliminary inquiry/investigation with a view to determining whether there is, prima facie, some substance in the allegations. The preliminary inquiry may be made in several ways depending upon the nature of allegations and the judgment of the investigating officer."
10. From the above extract, it can be seen that the term "investigation" in respect of government officials could mean both investigation by the CBI, which could be termed as criminal investigation as well as investigation by the Department. Therefore, I do not find any force in the contention of the appellant that "investigation" means only criminal investigation. In this connection, I may refer to the Division Bench decision of this Commission in Shri Gobind Jha Vs Army Hqrs. (CIC/80/2006/ 00039 dated 1.6.2006). In that case, the appellant sought for various information including a copy of the out on the basis of his complaint. The CPIO and AA declined to furnish a copy of the report applying the provisions of Section 8(1)(h) of the Act. Examining the provisions of Section 8(1)(h) of the Act, the Division Bench observed -
"While in criminal law, an investigation can be said to be completed with the filing of charge sheet in the 6 appropriate court by an investigating agency, in cases of vigilance related inquiries, misconduct and disciplinary matters, the investigation can be said to be over only when the competent authority makes a determination about the culpability or otherwise of the person or persons investigated against. In that sense, the word 'investigation' used in Section 8(1)(h) should be construed rather broadly and should include all inquiries, verification of records, assessments and so on which may be ordered in specific cases. In all such matters, the inquiry or investigation should be taken as completed only after the competent authority makes a prima facie determination about the presence or absence of guilt on receipt of the investigation/inquiry report from the investigation/inquiry officer".
11. Thus, from this decision, it is apparent that this Commission has not viewed the term 'investigation' as used in Section 8(1)
(h) to apply exclusively to criminal investigation as propounded by the appellant in the present case. Therefore, the contention of the appellant that only when criminal investigation is pending, the provisions of Section 8(1)(j) could be applied, has to fail.
12. The second limb of the contention of the appellant is that the Department is incompetent to initiate disciplinary proceeding after withdrawal of the SLP. As far as this contention is concerned, I would like to make it abundantly clear that it is not only beyond the scope of the proceedings before the Commission to examine whether the Department is competent to take disciplinary action or not but it is also beyond its jurisdiction. Therefore, when the Department has stated that three disciplinary proceedings are pending against the appellant, my examination will be restricted only to decide whether, the information sought by the appellant could be denied on the ground that investigation is pending. According to the Department, on the basis of the advice of the CVC, the matter is pending with the Department of Personnel.
Any disciplinary process till such time a charge sheet is issued or the case is closed, has to be treated as a matter under enquiry/investigation, to be covered under Section 8(1)(h). In Shri D.L.Chandhok Vs. Central Warehousing Corporation (Appeal No.121/ICPP/ 2006 dated 9.10.06), this Commission has held that -
"the term 'investigation' would include
inquiries/search/scrutiny which would be either
departmental or criminal and therefore when a departmental inquiry is on, the information sought in relation to such an inquiry can be denied in terms of Section 8(1)(h) of the Act".
13. In the present case, it is evident from the applications of the appellant themselves that he has sought copies of various documents connected with disciplinary/other proceedings 7 against him. Therefore, I am of the view that the CPIOs and AAs have correctly applied the provisions of Section 8(1)(h) to decline to provide copies of the documents sought for by the appellant."
Learned counsel, therefore, contended that the application was decided on the basis of facts as existed at that time. This cannot become subject of appeal but can be the issue of a fresh application, which appellant Shri Mathur is free to make. Appellant Shri Mathur on the other hand submitted that he had, in fact, moved a fresh application after the charge sheet was issued since the impugned documents were not part of the charge sheet nor they were relied upon during the investigation. It is the order of the Appellate Authority Shri Kalam Singh in decision No. 21/2008 that appellant Shri B.S. Mathur had challenged, in which at the time that the decision was taken on 31-10-2008 it had already been approved on 26-9-2008 that a charge sheet be issued which was issued to Shri Mathur on 3-11-08. Shri B.S. Mathur contended that supply of data under the RTI Act has not been made contingent upon the dates of decisions but from the availability of information at the time asked for.
INTERIM DECISION In the interim decision it was held that it is indeed a fact that this Commission has repeatedly held the view that departmental enquiry and investigation as laid down u/s 8 (1) (h) of the RTI Act qualifying for exemption are inseparable. We have, therefore, applied exemption u/s 8 (1) (h) both to the proceedings through courts and proceedings in departmental enquiries, since quite clearly the exigencies of both are identical in matters administrative as so clearly held in the decision quoted above. Nevertheless, on the application of exemption u/s 8 (1) (h) itself we have a definitive ruling of the Delhi High Court in which Hon'ble Ravindra Bhat J. has in his judgement in Bhagat Singh Vs. Chief Information Commissioner in W.P. No. 3114/2007 held as under:
"11. "The Universal Declaration of Human Rights, adopted by the United Nations in 1948, assured by Article 19, everyone the right "to seek, receive and impart information and ideas through any media, regardless of frontiers". In Secretary Ministry of Information and Broadcasting, Govt. of India and others vs. 8 Cricket Association of Bengal and others (1995 (2) SCC 161) the Supreme Court remarked about this right in the following terms:
"The right to freedom of speech and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an "aware" citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizen to arrive at informed judgment on all issues touching them."
This right to information was explicitly held to be our fundamental right under Article 19 (1) (a) of the Constitution of India for the first time by Justice K. K. Mathew in the State of UP vs. Raj Narain, (1975) (4) SCC 428. This view was followed by the Supreme Court on a number of decisions and after public demand, the Right to Information Act, 2005 was enacted and brought into force.
12. The Act is an effectuation of the Right to freedom of speech and expression. In an increasingly knowledge based society, information and access to information holds the key to resources, benefits and distribution of powers. Information, more than any other element, is of critical importance participatory democracy. By one fell stroke, under the Act, the make of procedures and official barriers that had previously impeded information, has been swept aside. The citizen and information seekers have, subject to a few exceptions, an overriding right to be given information on matters in the possession of the state and public agencies that are covered by the Act. As is reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the government's and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.
13. Access to information under Section 3 of the Act is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right self. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation process cannot be a ground for refusal of the information, the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, section 8(1) (h) and other such provisions would become the haven for dodging demands for information."
9In this case the Court took serious notice of the two-year delay in releasing of information and the lack of adequate reasoning of the orders of PIO and appellate authority. S Ravinder Bhat J specifically notes, "As held in the preceding part of the judgment, without a disclosure as to how the investigation process would be hampered by sharing the materials collected till the notices were issued to the assessee, the respondents could not have rejected the request for granting information.2 "
On the other hand, appellant Shri Mathur has submitted that he is in the process of filing a Second Appeal on the refusal of information at the level of PIO & Appellate Authority on his fresh application for information moved after receiving the charge sheet of 3-11-2008. To enable the appellant to move a second appeal and respondent to pursue his arguments in light of the decision of the High Court of Delhi quoted above, this appeal was therefore adjourned to 18th August, 2010 at 11.00 a.m. when both appeals were to be clubbed together for disposal.
Shri Mathur has then filed two further appeals both stemming from application made before the High Court of Delhi on 22-1-10. These are as follows:
File No. CIC/ WB/A/2010/00314 In this case the application of Shri B.S. Mathur of 27-1-10 is as below:
(i) Furnish copy of agenda for Full Court meeting dated 27/09/2008 with respect to the applicant
(ii) Furnish Copy of the minutes of the Full Court meeting dated 27/09/2008.
(iii) Furnish detail of the number and names of the Judges actually participated in the discussion for and against the agenda.
(iv) Furnish detail of the number and names of the Judges who participated in the discussion and approved the finalization of Article of Charges subsequently issued against the applicant.
(v) Furnish copy of the minutes of the Full court meeting dated 27/11/2008.
(vi) Furnish the copy of the agenda laid before the Full Court meeting held on 27/11/2008.2 10
(vii) Furnish the detail as to how many inquiries have been initiated against the applicant. If more than one, then furnish the detail about the pending inquiry preliminary or otherwise, if any.
(viii) Furnish the copy of the agenda and minutes of the Full Court meeting held on 18/08/2009.
(ix) Furnish the copy of the agenda and minutes of the Full Court meeting held on 18/11/2009.
(x) Furnish the copy of the agenda and minutes of the Full Court meeting held on 15/12/2009.
(xi) Furnish the copy of the agenda and minutes of the Full Court meeting held on 15/01/2010.
(xii) Furnish copy of the criteria/ policy of the Hon'ble High Court adopted for appointment of District & Sessions Judge and District Judges in the year 2007.
(xiii) Furnish copy of the criteria/ policy of the Hon'ble High Court adopted for appointment of District & Sessions Judge and District Judges in the year 2008.
(xiv) Furnish copy of the criteria/ policy of the Hon'ble High Court adopted for appointment of District & Sessions Judge and District Judges in the year 2009.
To this he received a response dated 16-2-2010 point wise as below:
S.No. Information Sought Reply
(i) Furnish copy of agenda for Full No Full Court meeting was held Court meeting dated on 27/09/2008.
27/09/2008 with respect to the applicant.
(ii) Furnish copy of minutes of the Full Court meeting dated 27/09/2008.
(iii) Furnish detail of the number and names of the Judges actually participated in the discussion for and against the agenda.
(iv) Furnish detail of the number List of Hon'ble Judges who and names of the Judges who attended the Full Court meeting participated in the discussion dated 29/09/2008 in which and approved the finalization Articles of Charge against the of Article of Charges officer were approved is placed subsequently issued against at Annexure R-6. the applicant.
(v) Furnish copy of the minutes of Copy of the Suppl. Agenda Item the Full court meeting dated No. 1 and the decision relating to 27/11/2008. concerning the officer is placed at Annexure R-7.
(vi) Furnish the copy of the agenda laid before the Full Court 11 meeting held on 27/11/2008.
(vii) Furnish the detail as to how The information cannot be many inquiries have been supplied as the same is exempt initiated against the applicant. under section 8(1)(h) of the If more than one, then furnish Right to Information Act, 2005 the detail about the pending read with Rule 5(b) of Delhi High inquiry preliminary or Court (Right to Information) otherwise, if any. Rules, 2006.
(viii) Furnish the copy of the agenda No Full Court meeting was held
and minutes of the Full Court on 18/08/2009
meeting held on 18/08/2009.
(ix) Furnish the copy of the agenda Copy of the decision taken
and minutes of the Full Court against Any other Item
meeting held on 18/11/2009. concerning the officer is placed at Annexure R-8.
(x) Furnish the copy of the agenda Copy of Agenda Item No. 7 and and minutes of the Full Court the decision taken against it, meeting held on 15/12/2009. concerning the officer is placed at Annexure R-9.
(xi) Furnish the copy of the agenda Copy of Agenda Item No. 7 and and minutes of the Full Court decision taken against it, meeting held on 15/01/2010. concerning the officer is placed at Annexure R-10.
(xii) Furnish copy of the criteria/ Copies of the decisions dated policy of the Hon'ble High 8/1/2007, 26/2/2007 and Court adopted for appointment 29/8/2007 taken against the of District & Sessions Judge concerned agenda items are and District Judges in the year placed at Annexure R-11 (colly) 2007.
(xiii) Furnish copy of the criteria/ Copies of the decisions dated policy of the Hon'ble High 9/4/2008, 5/9/2008 and Court adopted for appointment 29/9/2008 taken against the of District & Sessions Judge concerned agenda items are and District Judges in the year placed at Annexure R-12 (colly) 2008.
(xiv) Furnish copy of the criteria/ Copies of the decisions dated policy of the Hon'ble High 19/3/2009, 28/4/2009(two) and Court adopted for appointment 20/5/2009 taken against the of District & Sessions Judge concerned agenda items are and District Judges in the year placed at Annexure R-13 (colly) 2009.
Shri BS Mathur has then moved an appeal on 16-3-10 with the following prayer:
"allow appeal against the order dated 16/2/2010 of the Public Relation Officer of the High Court of Delhi at New Delhi directing furnishing of complete information sought for by the appellant vide his RTI Application No. 36/2010."12
He grounds this prayer in a reiteration of the point pleaded in first appeal in file No. CIC/WB/A/2009/203, which is as below:
"C. Section 8(i)(h) read as a whole makes the intention of the legislature in views of word "investigation" clear with the use of words "prosecution" of offenders that "investigation referred to under Section 8(i)(h)" essentially relate to investigation into an offence and would not cover within its ambit and inquiry much less a departmental inquiry if any. In case of the Appellant, the Public Information Officer has not disclosed as to which investigation, the information sought would possible impede as the information strictly related to the service record of the appellant and no investigation against him is pending."
This appeal was allowed in part by Appellate Authority Shri A.K. Mahajan in his order of 28-4-2010 in which he ruled as follows:
"The appeal is partly allowed. The Public Information Officer is directed to supply to the appellant the copies of Full Agenda of the Full Court meetings as requested under items No. 6 and 8 to 11 of his application within seven working days of the passing of this order."
Nevertheless, Shri Mathur has moved his second appeal before us with the following prayer:
(a) "allow appeal against the order dated 28/4/2010 of the Appellate Authority, High Court of Delhi at New Delhi in Appeal No. 16/2010 by directing to furnish complete information sought for by the appellant vide his RTI Application No. 36/2010.
(b) Award such amount of cost/penalty/ compensation as may be deemed fit and appropriate for wrongfully withholding information from the appellant."
The grounds for this appeal are once more his plea in first appeal, which is as follows:
"Section 8(i)(h) read as a whole makes the intention of the legislature in views of word "investigation" clear with the use of words "prosecution" of offenders that "investigation referred to under Section 8(i)(h)" essentially relate to investigation into an offence and would not cover within its ambit and inquiry much less a departmental inquiry if any. In case of the Appellant, the Public Information Officer has not disclosed as to which investigation, the information sought would possible impede as the information strictly related to the service record of the appellant and no investigation against him is pending. The facts of the case of Mr. Sarvesh Kaushal in Appeal No. 243/ICBP/2006, F No. PBA/06/237 decided by this Hon'ble 13 Commission vide order dated 27/12/2006 are clearly distinguishable on facts from the present case."
File No. CIC/ WB/A/2010/00315 In this case the request of Shri Mathur dated 22-1-2010 is an amalgam of the requests made in the two appeals above as below:
(i) "Copy of directions of Committee of Hon'ble Inspecting Judges allowing Registrar (Vig) to scrutinise personal file of applicant containing intimations supplied under the Conduct Rules.
(ii) Copy of the report of the Registrar (Vig.) dated 06/02/2008 in compliance of (i) above.
(iii) Copy of the minutes of the meeting of the committee of Hon'ble the Inspecting Judges dated 14/2/2008.
(iv) Copy of the minutes of the meeting of the committee of Hon'ble the Inspecting Judges held on 03/04/2008.
(v) Copy of the minutes of the meeting of the committee of Hon'ble the Inspecting Judges dated 14/05/2008.
(vi) Copy of the minutes of the meeting of the Administrative Committee held on 19/5/2008.
(vii) Copies of the comments and / or material supplied/ placed before the committee of Hon'ble the Inspecting Judges.
(viii) Copies of the comments and / or material supplied/ placed before Hon'ble the Full Court prior to its meeting dated 26/05/2008.
(ix) Copies of the Agenda and the minutes of Hon'ble the Full Court held on 26/05/2008.
(x) Copy of the minutes/ decision of the Committee headed by Hon'ble the Chief Justice in connection with the reply of letters dated 20/2/2008, held on 29/5/2008.
(xi) Copy of the minutes / decision of the Committee of Hon'ble the Inspecting Judges held post intimation dated 1/6/2007 by the applicant.
(xii) Copy of the decision of the Committee of the Hon'ble Judges headed by Hon'ble Chief Justice on representation/ review petition filed by the applicant on 28/06/2008
(xiii) Copy of the minutes/ decision of the meeting of the committee above (xii) which was communicated to the applicant vide communication No. 1222/DHC/ Gaz./VI.E.2(a) / 2008 dated 03/07/2008.
(xiv) Copy of agenda for Full Court meeting dated 29/09/2008.
(xv) Copy of the minutes of the meeting regarding the decision taken by the Full Court on 29/09/2008 quo applicant. (xvi) Copies of agenda and the minutes of the full Court meeting dated 01/09/2008.
(xvii) Copy of the minutes of the Administrative Committee meeting held on 04/09/2008.
(xviii) Copies of the agenda and minutes of the Full Court meeting held on 05/09/2008."14
In his response of 16-2-2010 PIO Shri R.K. Gupta has with regard to the first 13 questions of Shri Mathur responded as follows:
"The information sought by you cannot be supplied as the same is exempt under Section 8(1)(h) of the right to Information Act, 2005 read with Rule 5 (b) of Delhi High Court ( Right to Information) Rules, 2006, as also earlier communicated to you vide this court's Letter No. 25080/RTI/DHC/ 184/08 dated 16/9/2008 (Dy. No. 184/08) in respect of information sought at No. (i) to (xi) herein which were the same."
To the remaining questions the following is PIO's response:
(xiv) Copy of agenda for Full Copy of Agenda Item No. 6 of court meeting dated the Full Court concerning the 29/09/2008. officer and relevant portion of
(xv) Copy of the minutes of the the decision relating to meeting regarding the approval of articles of charge decision taken by the full and statement of imputations Court on 29/09/2008 qua and misconduct is enclosed at applicant. Annexure R-1.
Rest of the portion of the decision cannot be supplied as the same is exempt under section 8(1)(h) of the Right To Information Act, 2005 read with Rule 5(b) of Delhi High court (Right to Information0 Rules, 2006.
Copy of Agenda Item No. 7 of
the Full Court and decision
against it concerning the
officer is enclosed at
Annexure R-2.
(xvi) Copies of agenda and the Copy of the Agenda Item No.
minutes of the Full court 2 concerning, inter alia, the
meeting dated 01/09/2008 officer is enclosed at
Annexure R-3. The same,
inter alia, could not be taken
for want of time.
(xvii) Copy of the minutes of the Copy of relevant portion of the Administrative Committee decision relating to approval meeting held on of articles of charge 04/09/2008. concerning the officer is enclosed at Annexure R-4.
Rest of the portion of the decisions can not be supplied 15 as the same is exempt under section 8(1)(h) of the Right to Information Act, 2005 read with Rule 5(b) of Delhi High Court (Right to Information) Rule, 2006.
(xviii Copies of the agenda and Copy of Agenda Item No. 2 ) minutes of the Full Court and decision taken against it meeting held on concerning, inter alia, the 05/09/2008. officer is enclosed at Annexure R-5.
Shri B.S. Mathur has then moved an appeal on 18-3-10 before the Appellate Authority, High Court of Delhi submitting that this was an appeal on the following:
"Order dated 16/2/2010 whereby the Public Information Officer has partly allowed and has not supplied the complete information in RTI Application No. 35/10 dated 23/1/2010."
In this he has disputed the application of Section 8 (1) (h) to his case as follows:
"Because Sub-Section (1)(h) of Section 8 of the Act, exempts information which would, or would be likely to prejudice civil proceedings brought by an authority arising out of investigations conducted for the purposes of such due in Sub-Section 2 thereof. Sub-Section 2 clearly suggests that the authority may still allow access to information if public interest and disclosure outweighs the harm to the protected interests. Thus, a closure reading of Section 8(i)(h) with Section 8(2) depicts that the public authority before refusing to disclose information sought, must apply its mind independently to the requirements of Sub- Section 2 of Section 8 of the Act too clearly whether by disclosure of the information the public interest, would outweigh the harm to the protected interest. In the present case however, the impugned order dated 16/2/2010, does not disclose as to whether the Information Officer ever addressed himself to these requirements of Section 8(2) of the Act."
Upon this by his order of 28-4-2010 Appellate Authority Shri A.K. Mahajan dismissed the appeal as below:
"No doubt, the report of inquiry into the charge sheet against the appellant has been made but pursuant to it, the representation made by the appellant is still under consideration of the Delhi High Court and it cannot be treated as if the matter requiring investigation / inquiry has been fully or entirely concluded. Even otherwise, the subject matter of questions (i) to (xii) is pending in 16 second appeal before the Central Information Commission and thus the matter is subjudice. Any decision made in this appeal may be in conflict with the decision taken by the Central Information Commission. The Public Information Officer has rightly denied the information with respect to questions no. (i) to
(xii) to the appellant."
Shri B.S. Mathur has then moved his second appeal before us with the following prayer:
(a) "allow appeal against the order dated 28/4/2010 of the Appellate Authority, High Court of Delhi at New Delhi in Appeal No. 17/2010 by directing to furnish complete information sought for by the appellant vide his RTI Application No. 35/2010;
(b) award such amount of cost / penalty / compensation as may be deemed fit and appropriate for wrongfully withholding information from the appellant."
His grounds for appeal are summarised as follows:
(i) "Section 8(i)(h) read as a whole makes the intention of the legislature in views of word "investigation" clear with the user of words "prosecution" of offenders that "investigation" referred to under Section 8(i)(h)" essentially relate to investigation into an offence and would not cover within its ambit and inquiry much less a departmental inquiry if any. In case of the Appellant, the Public Information Officer has not disclosed as to which investigation the information sought would possibly impede, as the information strictly related to the service record of the appellant and no investigation against him is pending. The facts of the case of Mr. Sarvesh Kaushal in Appeal No. 243/ICBP/2006, F No. PBA/06/237 decided by this Hon'ble Commission vide order dated 27/12/2006 are clearly distinguishable on facts from the present case."
(ii) "Because Sub-Section (i)(h) of Section 8 of the Act, exempts information which would, or would be likely to prejudice civil proceedings brought by an authority arising out of investigations conducted for the purposes of Such due in Sub-Section 2 thereof. Sub-
Section 2 clearly suggests that the authority may still allow access to information if public interest and disclosure outweighs the harm to the protected interests. Thus, a closure reading of Section 8(i)(h) with Section 8(2) depicts that the public authority before refusing to disclose information sought, must apply its mind independently to the requirements of Sub- Section 2 of Section 8 of the Act too clearly whether by disclosure of the information the public interest, would outweigh the harm to the protected interests. In the present case however, the impugned order dated 16/2/2010, does not disclose as to whether the Information Officer ever addressed himself to these requirements of Section 8(2) of the Act."
17In all three cases we received a request for an adjournment from CPIO High Court of Delhi dated 16.8.2010. On speaking to appellant Shri B. S. Mathur, however, he insisted that the hearing should take place, since it has already taken an adjournment. Appellant also pleaded for an early decision. Although, therefore, the hearing continued to be scheduled on 18-8-2010, only respondents were present as follows:
Respondents Shri P. K. Gupta, Joint Registrar & PIO, Delhi High Court Ms. Razia Ali, Advocate for Mr. Rajiv Bansal, Advocate Shri Sudhir Sachdeva, SJA, Delhi High Court Shri Dibya Ranan Gouda, JJA, Delhi High Court Although informed of the hearing, when spoken to on the telephone at the scheduled time appellant Shri B. S. Mathur pleaded ignorance. Because appellant Shri Mathur was not present and respondents had already sought an adjournment of all three cases, the hearing were adjourned to 30th August, 2010 at 4.00 p.m. All the three appeals were then heard together on 30-8- 2010. The following are present.
Appellant:
Shri B.S. Mathur Respondents Shri P. K. Gupta, Joint Registrar & PIO, Delhi High Court Shri Sudhir Sachdeva, SJA, Delhi High Court Shri Dibya Ranan Gouda, JJA, Delhi High Court Shri P.K. Gupta, Jt. Registrar, High Court of Delhi submitted that in this case there were two investigations. As submitted by learned counsel for respondent in the last hearing, at the time that the application was made which has been considered in appeal No. CIC/WB/A/2009/203 the first investigation was still in progress when an enquiry report was pending. That enquiry report has since been received and penalty imposed as a result and relevant documents from that enquiry have been provided to appellant Shri B.S. Mathur. However, there is another investigation, which is initiated even before the closure of the first with wider ramification, which is still under process and regarding which information cannot be disclosed under section 8 (1) (h). This investigation file is with the Vigilance Division of the Delhi High Court to which even the Registry does not have access.18
Appellant Shri Mathur, on the other hand, invited our attention to his question No. (vii) in file No. CIC/WB/A/2010/00314 in which he has asked a simple question as to how many enquiries have been initiated against him and details of these, to which he has been replied as follows:
"The information cannot be supplied as the same is exempt under section 8(1)(h) of the Right to Information Act, 2005 read with Rule 5(b) of Delhi High Court(Right to Information) Rules, 2006."
While conceding that the information sought in file No. CIC/WB/A/2010/0315 and that sought in file No. CIC/WB/A/2009/00203 was similar, appellant Shri Mathur submitted that the decision of Appellate Authority in the Appeal No. 17/2010 is malaise in law by taking recourse to the appeal pending before the Central Information Commission.
DECISION NOTICE The key issue here then is whether the information sought by appellant Shri Mathur qualifies for exemption u/s 8 (1) (h). It cannot be denied of course that considerable information has already flowed to appellant in this matter since the initial outright refusal of disclosure in the decision of PIO of 14-9-08 when a blanket exemption was sought u/s 8 (1) (h). Appellant Shri Mathur also concedes this fact. However, what appellant now pleads is not that the detail of the progress of enquiry be provided but how many cases under investigation against him and what the investigation is about. He has sought to read ulterior motive into the investigation by the agencies in the High Court of Delhi by alleging their violation of the Supreme Court Order and attempt to by-pass those orders by claiming both that the enquiry is complete and that it is still incomplete.
On the question of whether there is an attempt to mislead the Supreme Court this Commission has no authority to opine. Nevertheless, it has now been clarified to appellant Shri Mathur that there were, in fact, two enquiries, one of which stands completed and the other that is still in progress. It is the contention of respondents that disclosing even the nature of the second 19 enquiry will seriously compromise the enquiry itself. Insofar as the appellant's plea that he should have been informed of why he is being penalised, this information had already been provided to him with regard to the enquiry that has been completed on the basis of which report he has, in fact, been penalised. When and if a formal enquiry is initiated in consequence of the second investigation appellant Shri Mathur will be duly informed of the consequences of the investigation. However, before that investigation is complete disclosure of any information would seriously undermine the process. PIO has separately disclosed a paper in confidence to this Commission providing the subject of the ongoing investigation.
The Commission has already, in our interim decision, ruled on the question of application of exemption under Sec 8(1) (h) to departmental investigation. In the hearing, the question of appellant on the number of investigations initiated by the High Court of Delhi stands answered in the hearing. On the remaining issue of whether the case merits application of Sec 8 (1) (h) to the simple question enquiring on the subject of the investigation, to which this Commission is privy, remains to be decided.
Reserved in the hearing, this decision is announced on this thirty-first day of August 2010 in open chambers. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 31-8-2010 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 31-8-2010 20 21