Central Information Commission
Mr. Manoj Kumar Gupta vs Central Vigilance Commission on 16 June, 2011
ENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SM/A/2011/000238/SG/12911
Appeal No. CIC/SM/A/2011/000238/SG
Relevant Facts emerging from the Appeal:
Appellant: : Mr. Manoj Kumar Gupta
Qtr. No. B-2, Coal Estate Colony,
WCL, Civil Lines, NAGPUR- 440 001
Respondent: : Mr. Keshav Rao
Director & CPIO,
Central Vigilance Commission
Satarkta Bhawan, G.P.O. Complex, Block A,
INA, New-Delhi- 110023.
RTI application: 07/06/2010
PIO reply: 01/07/2010
First appeal 15/07/2010
FAA order 16/08/2010
Second appeal 15/09/2010
Information sought:
Query No.1: Please provide a certified copy of complaint filed by Shri. Babu Khan, Org. Secretary, Jharkhand Mukti Morcha, 15B, St. Columbus Rd, Hazaribagh, which was forwarded by Shri. Bhubneshwer Mehta, Honb'le (MP) (Loksabha) dated: 03/11/2007. Query No.2: Please provide a certified copy of investigation report and his professional recommendations prepared by CIL vigilance executive personal on dated: 19/03/2008 and submitted to CVC, New-Delhi under the technical guidance direction of CVO, CIL on above said complaint dated: 03/11/2007 raised by Shri. Babu Khan, Org. Secretary. Query No.3: Please also provide a certified copy & Office Memorandum No. 008/CO/023-7694 Dated 01/04/2008 issued by Dr. Jaya Balachandran, Director, CVC, regarding "the role of CMD, CIL into the ambit of said enquiry"
PIO's reply:
In this connection, it is intimated that the case has yet to reach its logical conclusion. As such, your request for supply of certified copies of documents is denied in terms of provisions of 8(1) (h) of RTI Act, since disclosure of the information as this stage would impede the process of investigation.
Further, it may be noted that the issues/allegations similar to the one raised by you in the RTI applications dated 05/01/2010 and 07/06/2010 have already been investigated and appropriate advice tendered. However, you are advised to lodge a fresh complaint if any additional information is available with you.
Grounds for First appeal:
Unjust denial of information.Page 1 of 4
FAA order:
"4. I have gone through the relevant records and find that the Appellant in his RTI Application had sought information/documents relating to the complaint dated 03.11.2007 made by Shri Babu Khan, received in the Commission through Shri Bhubaneshwar Mehta, M.P. (Loksabha). I find that as per the information available in the relevant file of this Commission, the Commission, in this case, had advised initiation of major penalty proceedings against officers of Coal India Ltd. I find that the disciplinary proceedings against the officers of Coal India Ltd are still pending, that is, the authorities concerned have not yet issued final orders in the matter, which would mean that the case is still under investigation. The Appellant may 'note' that the cases where the authority concerned has not yet taken a final view in the matter, that is, the cases have still not reached their logical conclusion, are to be considered 'under investigation', as upheld by Central In formation Commission ('CIC) in the case of Shri Shankor Sharma and other Vs Income Tax Department in case No. CJC/AT/A/2007/00007/10/11 where CIC stated that "investigation would mean all actions of law enforcement, disciplinary proceedings, enquiries, adjudications and so on.
Logically, no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken". In such cases, where the investigation is not complete, that is, the cases have not been taken to its logical conclusion, the disclosure of information is exempt under Section 8(l)(h) of the RTI Act, as upheld by the CIC in case No. CIC/AT/A/2008/01500 in the case of Shri N Saini vs. LIC of India in which CIC stated that "there is also public interest in keeping the proceedings of an enquiry against the public servant confidential as any premature disclosure of the contents of such enquiry can compromise its objectivity as well as integrity. In fact, confidentiality is a key element of the enquiry." I am of the view that the documents being sought by the Appellant contain details of the case/investigation, conducted so far, against the officers of CIL, and the disclosure of the same at this stage may interfere in the process of further inquiry/investigation. I, therefore, uphold: the decision of the CPIO, to deny the information/documents pertaining to paras (1) & (2) of the Appellant Application's dated 07.06.2010.
5. However, as regards para (3) of the Appellant Application's dated 07.06.2010, I find that, the Appellant in this pan, had sought a copy of Office Memorandum No. 008/C0L1023 dated 01.04.2008. I find that providing this information to the Appellant is not likely to impede the further progress of the case. I, therefore, direct the CPIO concerned, that is, Smt. Jyoti Mehta, Director to provide to the Appellant, a certified copy of Commission's Office Memorandum No. OO8ICOL/023 dated 01.04.2008 to the Appellant, within 15 days of the receipt of these orders. The documents may be provided to the Appellant, free of charges, keeping in view the provisions contained under Section 7(6) of the RTI Act."
Grounds for Second appeal:
Herewith refer decision of High Court of Delhi in WP(C) No. 3114/2007 Dated: 03 December, 2007. Bhagat Singh Vs. Central Information Commission & Ors and also refer in case file No. CIC/WB/A12009/000439 Dated: 30/03/2009, decision announced on 25 June, 2010 Shri. Rakesh Kumar Gupta Vs Central Vigilance Commission (CVC) that "three specific ingredients have been laid down for seeking exemption u/s. 8(1 )(h). These are as follows:
Rule-1 As is reflected in its preambular paragraphs the enactment seeks to promote transparency, arrest corruption and to hold the Government and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein. Rule-2: Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exemption 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 it self.
Rule-3: A right based enactment is akin to a welfare measures, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8 relieving the authority from the obligation to provide information constitute restrictions on the exercise of the rights provided by it.Page 2 of 4
Herewith also refer decision of High Court of Delhi in WP(C) No. 311412007 Dated: 03'' December, 2007. Bhagat Singh Vs. Central Information Commission & Ors In another Hon'ble CIC decision in case file No: CICIWBIAI2009/000568 dated: 26-05-2009 Dr. Sudershan Kumar Vs. Central Vigilance Commission (CVC), Date of Decision: 12-08-2010. In this context the scope of exemption u/s. 8(1)(h) is limited to reasonable grounds being offered for availing of such an exemption, which has not been done in this case. In para 15 of the above order moreover, Honble S. Ravindra 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 matters collected till the notice were issued to the assesses, the respondents could not, even after overruling the objection, should not have imposed the condition that in formation could be disclosed only after recovery was made"
Relevant Facts emerging during Hearing:
The following were present:
Appellant: Mr. Manoj Kumar Gupta on telephone though mobile no. 09423152174; Respondent: Mr. Keshav Rao, Director & CPIO;
The respondent states that since the matter is not closed yet and investigation going on information cannot be disclosed. The Commission asked the PIO to justify how disclosing the information would impede the process of investigation. The respondent states that when an investigation is on going if information is provided some one could influence the process of investigation. Presently some disciplinary proceedings are being initiated and disclosing the information may create difficulties in inquiry proceedings. The arguments given by the PIO would be a generic arguments which would apply when any investigation or disciplinary proceedings are being conducted. The PIO has not given any specific reasons to justify that the process of investigation would be impeded in this particular case. The PIO's contention is apparently that when any investigation process is ongoing release of infroamtion would impede the process of investigation.
The Respondent has not been able to establish that disclosing the information would impede the process of investigation. The appellant has stated that in this matter the CVO of CIL had submitted his investigation report in March 2008. The Respondent states that it should normally taken about 12 months to complete the process of investigation and disciplinary proceedings. Section 8(1)(h) of the RTI Act exempts disclosure of "information which would impede the process of investigation or apprehension or prosecution of offenders".
Justice Ravindra Bhat has held in Bhagatsingh vs. CIC WP (c ) no. 3114/2007- "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 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.
14. A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms; there is some authority supporting this view ( See Nathi Devi v. Radha Devi Gupta 2005 (2) SCC 201; B. R. Kapoor v. State of Tamil Nadu 2001 (7) SCC 231 and V. Tulasamma v. Sesha Reddy Page 3 of 4 1977 (3) SCC 99). Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restriction on the rights under the Act, which is unwarranted."
As per Section 19(5) "In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request."
Denial of a citizen's fundamental right must be justified and the mere act of continuing an investigation cannot be used to deny citizens' rights. Most investigations and investigators in the country appear to take an enormous amount of time to decide or conclude anything. The Respondent had admitted that the guidelines for completing the complete process should be less than about 12 months. In the instant case it is over 38 months. If investigating agencies in the country were to diligently enforce the timelines laid down, they would not have to resort to Section 8(1)(h) to refuse information. In view of this, the Commission does not accept the denial of information under Section 8(1)(h) of the RTI Act.
Decision:
The Appeal is allowed.
The PIO will provide the complete information sought in the RTI Application alongwith attested photocopies to the Appellant before 10 July 2011. This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi Information Commissioner 16 June 2011 (In any correspondence on this decision, mention the complete decision number. (DW)) Page 4 of 4