Central Information Commission
Vishal Jain vs Department Of Telecommunications on 14 June, 2023
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क ीय सुचना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मुिनरका,
नरका नई द ली - 110067
Munirka, New Delhi-110067
File no.: CIC/DOTEL/A/2022/146230 +
CIC/DOTEL/A/2022/146231
In the matter of
Vishal Jain
... Appellant
VS
CPIO & Director (AS-IV),
Department of Telecommunications (DOT),
Sanchar Bhawan, 20, Ashoka Road,
New Delhi-110001
... Respondent
File No.- : 146230 146231 RTI application filed on : 20/04/2022 20/04/2022 CPIO replied on : 13/05/2022 13/05/2022 First appeal filed on : 28/07/2022 28/07/2022 First Appellate Authority order : 25/08/2022 25/08/2022 Second Appeal filed on : 27/09/2022 27/09/2022 Date of Hearing : 05/06/2023 05/06/2023 Date of Decision : 14/06/2023 14/06/2023 The following were present:
Appellant : Abhishek Kumar Jha, Representative alongwith Advocates Manjul Bajpai, present over VC at CIC Respondent: Trilok Chandra, Director (AS-IV) & CPIO, present over VC at CIC Information Sought:
The Appellant has made a reference to the decision taken by DOT for levy of penalty vide Notice dated 29-09-2021 on Vodafone Idea Limited for violation of terms of the Agreement / Regulations. With regard to the same, he has sought the following information:
i. Provide a copy of the Report/ Decision of the High-Level Departmental Committee, DOT, referred to in the Notice No. 7-1/2016-AS-IV (Pt-II) dated 29/09/2021.1
ii. Provide copies of the Reference/ Communication(s) sent by DOT to High- Level Departmental Committee, DOT, for consideration / examination on / relating to the recommendation for imposition of penalty on Vodafone India Limited (erstwhile M/s Idea Cellular Ltd. and Aditya Birla Telecom Ltd.). iii. Provide a copy of the Report/ decision of the Digital Communication Commission, DOT, referred to in the Notice No. 7-1120'16-AS-IV (Pt.-ll) dated 29.09.2021.
iv. to ix. And other related information.
Grounds for Second Appeal The CPIO did not provide the desired information.
Submissions made by Appellant and Respondent during Hearing:
The appellant's counsel reiterated the written submissions dated 29.05.2023. The CPIO submitted that a suitable reply was provided vide letter dated 13.05.2022. The CPIO vide written submissions dated 01.06.2023 reiterated the earlier replies and also stated that as the subject matter/ documents relating to the RTI application are under challenge before the Hon'ble TDSAT vide Telecom Petition No. 44 of 2021, the information can be denied under section 8 (1) (h) of the RTI Act also. He also informed that the next date of hearing is on 17.07.2023.
The appellant's counsel contended that the information sought are non cabinet documents.
Observations:
Based on a perusal of the record, it was noted that the CPIO vide letter dated 13.05.2022 replied to the appellant and stated that the information sought by the appellant is voluminous and vague in nature which may disproportionately divert their resources. Accordingly, the appellant was invited to the office to inspect the desired information on 23.05.2022 at 3.00 pm for one hour. It was also mentioned that the information sought if available shall be given.
Thereafter, on 17.06.2022 the CPIO sent a letter to the appellant informing him that some of the documents sought by him comes under the exemption from disclosure of information u/s 8(1)(i) of the RTI Act, hence, only part of the documents shall be provided to the appellant after payment of the requisite fees of Rs 398/-. The applicant deposited the fee on 24.06.2022 reserving the right and remedies in respect of the denial of information, documents. On 28.06.2022 the CPIO had sent a set of documents to the appellant.
2The appellant challenged the denial of partial information u/s 8(1)(i) of the RTI Act. He submitted that the documents sought by him are after the decision has been taken that is the department has already taken the decision to levy penalty and therefore the exemption u/s 8(1)(i) of the RTI Act is not applicable/available to the department.
Further, no reason or explanation has been given by the officer concerned for applying said Sec 8(1)(i). The objection of the officer concerned/application of the said section 8(1)(i) by the officer concerned is completely vague and therefore deserves to be rejected. General reference of the said section 8(1)(i) does not satisfy the requirement of law.
It was also mentioned that the officer concerned has erroneously invoked Sec 8(1)(i) of the RTI Act. The blanket/mechanical invocation of sec 8(1)(i) of the RTI Act without specific reference to documents and reasons for denial thereof is bad in law.
He also submitted that denying the information sought for in the RTI application without even explaining the applicability of the said exemption clause amounts to an unreasonable conduct.
The FAA had issued the following order in respect of the first appeal on 25.08.2022:
"
(a) The RTI applicant has already crystallised his RTI application dated 20.04.2022 into a list of 25 documents on 27.05.2022.
(b) CPIO agreed to share 12 out of 25 documents and the request for disclosure of remaining documents was rejected vide letter no. 9-1/2021- AS-IV dated 17.06.2022.
(c) Now an appeal has been made on 28.07.2022 to provide the remaining documents which is time barred u/s 19(1) of the RTI Act.
(d) The appellant has also referred to his RTI application to seek some additional information which cannot be entertained at appeal stage as the appellant has already crystallised his RTI application into a comprehensive list of 25 documents.
The appellant vide his written submissions dated 29.05.2023 submitted that the first appeal was not time barred and it was within the limitation. He further submitted that the letter dated 17.06.2022 of the CPIO was an 3 intimation u/s 7(3) of the RTI Act for payment of additional fee and a notice of FAA's intention to give part information u/s 10(2) of the RTI Act. He further mentioned that the letter dated 28.06.2022 finally provided part of the documents. The documents were physically received by the applicant/appellant on 29.06.2022 which is the date from which the limitation ought to be calculated.
He pointed out that he was surprised to notice the finding about his appeal being time barred, only in the FAA's order dated 25.08.2022. He submitted that he had not heard by the FAA before taking such view/decision, despite the appellant had explicitly requested for personal hearing in the matter and therefore the impugned order is violative of principles of natural justice and Article 14 and 21 of the Constitution. Reliance was placed on the decision dated 10.06.2019 of this bench in the matter of Mohit Kumar Gupta vs CPIO, ICAI vide case no. CIC/ICAOI/A/2018/629505. He pointed out that he was not even aware that the FAA was going to take such a view/decision in the matter.
Furthermore, he submitted that the Courts, including the Hon'ble Supreme Court and the CIC has repeatedly held the no such view/decision can be taken without hearing the aggrieved party.
He further submitted that after referring to the judgment of House of Lords in the United Kingdom delivered in Ridge vs Baldwin (1963) UKHL 2, the CIC has opined that in our country, the principles of natural justice are applicable in totality to administrative and quasi-judicial proceedings and that this is consistent and in line with the rapidly increasing role, functions and jurisdiction of such bodies in a welfare state like ours. In Uma Nath Pandey vs State of U.P AIR 2009 SC 2375, the Hon'ble Supreme Court has opined that "Natural justice is another name for common sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common sense liberal way. Justice is based substantially on natural ideals and human values..."
He further relied on O.M no. 20/10/23/2007-IR dated 09.07.2009, the DoPT while elaborating on the duties and responsibilities of the FAA, has stated that 4 "3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done...." He further submitted that the FAQ of DoPT clearly states that a first appeal can be filed within a period of thirty days from the date on which the information or decision of the PIO is received. He also submitted that in the present case the first appeal was filed within a period of 30 days from the date of receipt of the information, the later being 29.06.2022.
He also submitted that the limitation commences from the date of the communication providing actual physical information/documents and not from the dates of interregnum letters. The final communication providing documents is dated 28.06.2022 (received on 29.06.2022). It is a well settled principle that if the parties are in continuous communication with each other, the period of limitation shall start from the last date of the communication received from the other party. Reliance is placed on the case of Geo Miller & Co. Pvt. Ltd vs Chairman Rajasthan Vidyuth Nigam Ltd AIR 2019 SC 4244 & Meghram Choudhury vs Central Board of Direct Taxes decided on 21.01.2009. He also submitted that the FAA failed to appreciate that the reference to filing of an appeal within 30 days was contained in each of the letters of the CPIO dated 13.05.2022, 19.05.2022, 17.06.2022 and 28.06.2022 which are as under:
- CPIO's letter dated 13.05.2022 wherein only inspection was offered.
- CPIO's letter dated 19.05.2022 wherein time for inspection was fixed.
- CPIO's letter dated 17.06.2022 whereunder part documents were provided and the same were physically received on 29.06.2022. He reiterated that according to him the limitation has commenced from the date of providing the documents by the CPIO and therefore, there was no occasion for him to request for any condonation of delay. However, without prejudice thereto if the appellant has been given any indication of the view of the Learned FAA on the subject of limitation and an opportunity of hearing was given, the appellant would not have only explained but would have taken appropriate further steps in the matter.
In respect of crystallising the request for information/documents the appellant submitted that the FAA is completely wrong in holding that the appellant has 5 crystallised his RTI application dated 20.04.2022 into a list of 25 documents on 27.05.2022. The same is factually incorrect.
He submitted that when the CPIO had offered inspection at that stage, itself the appellant has clearly stated in its letter dated 18.05.2022 that:
a) It may be better for DoT to provide the requested information instead of such inspection because it may not result in provision of complete information sought and reserve his right with respect thereto. And
b) The DoT will still be required to provide/furnish information/document even after the inspection; and
c) That he expected DoT to provide inspection to each and all documents and information, directly/indirectly, relating to the subject matter, which was not done.
Thus, the appellant has clearly submitted, inter alia, that an inspection may not result in the completeness of information sought and that it would be better to provide all the requested information instead of such inspection and identification. However, the FAA has completely ignored the above communication.
The appellant was shown only one file by the CPIO, which is mentioned on the DoT's demand notice dated 29.09.2021 and was not shown any other papers/files for inspection.
The representative of the appellant was constrained to submit a limited list of documents. Even at the time i.e on 17.06.2022, when the CPIO refused to provide part of the documents even out of the documents listed on 27.05.2022, the appellant had clearly informed the CPIO, vide letter dated 24.06.2022 that only part of the documents requested in appellant's letter dated 20.04.2022 and subsequent inspection list dated 27.05.2022 were being provided and that therefore the appellant reserved his rights and remedies with respect to the denial of information, documents etc including challenging the decision to the appropriate authority.
He also alleged that the documents pertaining to the subject matter of the RTI application have not been shown to the appellant/his representative. He further submitted that the CPIO had wrongly denied the information u/s 8(1)(i) of the RTI Act.
6He further placed reliance on the case of A.N Gupta vs Ministry of Personnel, Public Grievances and Pensions, DoPT MANU/CI/0470/2007; C Ramesh vs Ministry of Personnel, Public Grievances and Pensions, DOPT MANU/CI/0429/2006.
He further submitted that no reason or explanation has been given by the CPIO for applying the said Sec 8(1)(i) and that his objection was completely vague and unsubstantiated and therefore deserved to be rejected. Reliance was placed on the case of Shruti Singh Chauhan vs Assistant Director (Vigilance) 2008 SCC Online CIC 5300.
The Commission observed that the case may be pending before the TDSAT on the same subject matter, unless there is embargo as per Sec 8(1)(b), the information cannot be denied.
It was also observed that the FAA's order was totally erroneous in law. Be that as it may, the CPIO failed to specify the 13 documents which were not provided and on what ground those were considered exempted u/s 8(1)(i) of the RTI Act. Moreover, the CPIO's claim of Sec 8(1)(h) during written submissions given to the CIC is an afterthought and there also the documents were not specified.
Further, reliance is placed on the decision of the Delhi High Court in the matter of Union of India vs Manjit Singh Bali. The relevant para of the order was extracted below:
"20. Mr Sinha had contended that the question whether the information was excluded from the purview of the RTI Act is a question of law and, therefore, could be raised at any stage. This contention is bereft of any merit as well. It is well settled that all information is covered under the purview of the RTI Act, unless it is expressly exempt from disclosure under Section 8 of the RTI Act or excluded from the purview by virtue of Section 24(1) of the RTI Act. The question whether the information is exempted under Section 8(1)(h) of the RTI Act or is excluded under Section 24(1) of the RTI Act has to be founded on certain factual premises. In order to claim exclusion under Section 24(1) of the RTI Act, the public authority must establish that the information sought for by the information seeker had been provided by an organization listed in the Second Schedule to the RTI Act. There is no indication that the notings relating to sanction of prosecution - which is sought to be denied to the respondent - is information that was received from an organization listed in the Second Schedule of the RTI Act. That absence of the public authority expressly affirming so, the question of claiming exclusion from 7 the RTI Act would not arise. Even if it is assumed that certain information, which has been denied to the respondent, was received from the CBI, the question of withholding the same would not arise if such information related to human rights violation or corruption. In the present case, prima facie, the information as sought for by the respondent relates to an allegation of corruption. Such information has been carved out from the exclusion under Section 24(1) of the Act and, therefore, would squarely fall within the cover of the RTI Act. Since, the factual foundation for claiming exclusion under Section 24 (1) of the RTI Act was not laid by the public authority or the CPIO before the CIC, it would not be apposite to permit the petitioner to raise this issue in these proceedings."
The Commission finds the blanket denial of information u/s 8(1)(h) of the RTI Act not sustainable. As the CPIO submitted that the inquiry is pending, a detailed analysis of the files should be done and the denial should be justified with proper reasons or information should be disclosed.
It is relevant to rely on the decision of the High Court of Delhi in the matter of Dy. Commissioner of Police vs D.K.Sharma, [WP (C) No. 12428 of 2009] dated 15.12.2010], wherein it was held as under:
"6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) ofthe RTI Act. In the instant case, the Petitioner has been unable to discharge that burden"
Furthermore, in the matter of Bhagat Singh v. CIC W.P.(C) No. 3114/2007, the High Court of Delhi upheld that the mere existence of an investigation process cannot be a ground for refusal of the information and observed as follows:
"..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 itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the 8 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."
Likewise, in the case of B.S. Mathur vs. Public Information Officer of Delhi High Court, (2011) 125 DRJ 508, it was held:
"..The scheme of the RTI Act, its objects and reasons indicate that disclosure of information is the rule and non-disclosure the exception. A public authority which seeks to withhold information available with it has to show that the information sought is of the nature specified in Section 8 RTI Act. As regards Section 8(1)(h) RTI Act, which is the only provision invoked by the Respondent to deny the Petitioner the information sought by him, it will have to be shown by the public authority that the information sought "would impede the process of investigation." The mere reproducing of the wording of the statute would not be sufficient when recourse is had to Section 8(1)(h) RTI Act. The burden is on the public authority to show in what manner the disclosure of such information would 'impede' the investigation."
The Delhi High Court in the matter of Union of India v. Manjit Singh Bali [W.P.(C) 634I/2015, decided on 06.08.2018] had held:
" 24. In the present case, the petitioner has not indicated any possible reason or ground to establish that the disclosure of information as sought by the petitioner would impede prosecution of the offender. xxx xxx xx.
25. It is also necessary to bear in mind that the RTI Act is a statutory expression of one of the facets of Article 19(1)(a) of the Constitution of India and any exclusionary clause under the RTI Act must be construed keeping in view the object for providing such exclusion. By virtue of Article 19 (2) of the Constitution of India, reasonable restrictions in exercise of rights under Article 19(1)(a) of the Constitution of India are sustainable if they are in the interest of the sovereignty and integrity of 9 India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. The exclusion under Section 8(1)(h) of the RTI Act - information which would impede process of investigation or apprehension or prosecution of the offenders-has to be read in conjunction with Article 19(2) of the Constitution of India."
The Delhi High Court in the matter of Adesh Kumar vs Union of India [WP (C) No. 3543/2014 dated 16.12.2014] held:
" 6. A plain reading of the aforesaid provision indicates that information which would impede the process of investigation or apprehension or prosecution of offenders could be denied. In order to deny information, the public authority must form an affirmative opinion that the disclosure of information would impede investigation, apprehension or prosecution of offenders; a mere perception or an assumption that disclosure of information may impede prosecution of offenders is not sufficient. In the present case, neither the FAA nor the CIC has considered as to how the information as sought for would impede the process of investigation or apprehension or prosecution of the petitioner and other accused.
10. A bare perusal of the order passed by the FAA also indicates that the aspect as to how the disclosure of information would impede prosecution has not been considered. Merely, citing that the information is exempted under Section 8(1)(h) of the Act would not absolve the public authority from discharging its onus as required to claim such exemption.
The Delhi High Court in the matter of Delhi Subordinate service ... Board vs Naveen Yadav[WP (C) No. 8960/2018 decided on 27.08.2018] had held:
" 7. Ms Ahlawat, further submits that since the matter is under investigation with Anti Corruption Branch of GNCTD and an FIR has been registered, no information in the matter could be provided as it would impede the process of investigation. This contention is also unpersuasive. This Court in number of cases has held that the public authority denying information on the ground of Section 8(1)(h) of the RTI Act would necessarily have to briefly indicate as to how the 10 disclosure of any information would impede the progress of any investigation."
The above decisions are already well known but have been reproduced here to indicate that there have been numerous instances, when the Court has clearly stated that information sought cannot be exempted from disclosure merely because the respondent chooses to cite the provision of Section 8(1)(h) of the RTI Act. The onus lies on the public authority claiming the exemption to demonstrate in what manner disclosure of such information could impede the investigation. Yet, some public authorities continue to deny information without adequate reasons, like in the above case.
Under the circumstances, the Commission is unable to accept the contentions of the respondent that on the pretext of pendency of the matter before TDSAT, the access to information is denied to the appellant and that too in a blanket manner.
Accordingly, the CPIO is directed to send a revised reply, as permissible under the provisions of the RTI Act. In the event of any specific information being denied, the CPIO shall clearly indicate as to under what provisions of the Act the disclosure of any information is exempt and justify the same for each such point which is denied.
Decision:
The CPIO is directed to revisit the files and send a revised reply as discussed during the hearing in respect of the remaining documents, using the provisions of Sec 10 of the RTI Act to mask the exempted information, within 10 days from the date of receipt of this order. While masking the information or denying the same, the reasons should be recorded as per the RTI Act. In case of non compliance of the above order, the appellant is at liberty to approach the Commission by filing a non-compliance petition.
The appeals are disposed of accordingly.
वनजा एन.
Vanaja N. Sarna (वनजा एन सरना) सरना सूचना आयु ) Information Commissioner (सू 11 Authenticated true copy (अिभ मािणत स यािपत ित) A.K. Assija (ऐ.के . असीजा) Dy. Registrar (उप-पंजीयक) 011- 26182594 / दनांक / Date 12