Central Information Commission
Bimal Kumar Bhattacharya vs Directorate Of Enforcement on 10 October, 2017
CENTRAL INFORMATION COMMISSION
2nd Floor, August Kranti Bhawan, Bhikaji Cama Place
New Delhi-110066, website:cic.gov.in
Appeal No.:-CIC/DOREV/A/2017/177871-BJ+
CIC/DIREN/A/2017/311969-BJ
Appellant : Mr. Bimal Kumar Bhattacharya,
Respondent : 1. CPIO & Under Secretary
Ministry of Finance, Department of Revenue,
New Delhi.
2. CPIO
Directorate of Enforcement,
New Delhi
Date of Hearing : 09.10.2017
Date of Decision : 09.10.2017
Date of filing of RTI application 21.04.2016
CPIO's response 04.05.2016-
(Transfer)
31.05.2016
Date of filing the First Appeal 20.06.2016
First Appellate Authority's response 30.06.2016
Date of diarised receipt of second appeal by the Commission 07.10.2016
ORDER
FACTS:
The Appellant vide his RTI application sought information regarding the action taken on his mail dated 02.02.2016 to Joint Director, Enforcement Directorate, Zonal Office, Ahmedabad, Gujarat and issues related thereto.
The CPIO & US, M/o Finance vide letter dated 04.05.2016 transferred the RTI Application to CPIO, Directorate of Enforcement, New Delhi u/s 6(3) of the RTI Act, 2005. The PIO vide its letter dated 31.05.2016 denied information u/s 24 of the RTI Act, 2005. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA vide its order dated 30.06.2016 upheld the reply of the CPIO.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Dr. Amal Kumar Bhattacharya, Appellant's Representative through VC;
Respondent: Mr. Santosh Kumar, Under Secretary, D/o Revenue and Mr. Aditya, ASO, D/o Revenue in person; Mr. Manoj Singh, Legal Consultant (Enforcement Directorate) (Arrive Very Late after the scheduled hearing);Page 1 of 8
The Appellant vide his email dated 02.10.2017, informed the Commission that he was authorizing Dr. Amal Kumar Bhattacharya as his representative to represent his case as he would not be available on the scheduled date of hearing. The Appellant's representative reiterated the contents of RTI application and stated that he had not received any information in respect of his complaint dated 02.02.2016 followed up with a reminder dated 23.05.2016 to JD, Enforcement Directorate (ED), Ahmedabad about economic offence committee by Thomas Cook India Ltd., Vadodara Office.
Attention of the Commission was drawn to aspects related to cheating, financial irregularity, embezzlement of money, violating FEMA etc. in which he himself was the affected person directly. During the hearing, it was informed that the Appellant was in no way victim of any FEMA violation and that on account of his personal experience, he had filed this complaint and in the public interest desired to know the action taken in the matter. The RTI application was transferred by D/o Revenue, Finance Department, New Delhi to Enforcement Directorate (ED), New Delhi on 04.05.2016. The CPIO, ED vide its letter dated 31.05.2016 denied information under claiming it to be an exempted organization under Section 24 r/w Second Schedule of RTI Act, 2005. The FAA had upheld the order of the CPIO on 30.06.2016. The Appellant's representative prayed that since the matter related to corruption, the exemption under Section 24 of the RTI Act, 2005 as claimed by the Respondent Public Authority (ED) could not be accepted. It was further informed that in June, 2016, he had filed a complaint also with the Commissioner of Police, Vadodara, Gujarat which is subjudice. The Respondent, D/o Revenue, M/o Finance vide his oral and written submission dated 27.09.2017 submitted that the Appellant had filed RTI Application online on 21.04.2016 in which he had sought information with respect to the complaint dated 02.02.2016, filed by him to the Jt. Director, ED, Zonal Office, Ahmedabad regarding the economic offences by Thomas Cook(India) Ltd. Vadodara Office. It was informed that since the information sought pertained to Enforcement Directorate(ED), therefore, the RTI application was transferred to the CPIO, Enforcement Directorate, who vide its letter dated 30.05.2016. Furthermore, the Appellant made a first Appeal before the FAA, ED which was also disposed vide FAA order dated 30.06.2016. It was therefore explained that the Appellant had approached the Commission against the order of the CPIO/FAA, ED and that there was no grievance against the transfer of RTI Application by the CPIO, D/o Revenue, M/o Finance.
The Respondent PIO, Enforcement Directorate (ED) delivered through the Legal Consultant (who arrived late) vide its written submission dated 06.10.2017 submitted that the order of the FAA/CPIO was in order and that the information sought could not be provided keeping in view the provision of Section 24 r/w II Schedule of the RTI Act, 2005. It was categorically stated that the Respondent Public Authority as listed in the exempted group of Authorities under II Schedule had suitably denied disclosure of information in the present matter. The Respondent's representative, present at the hearing, explained the Commission that on receipt of a complaint, the ED prepares an Enforcement Information Report which was not a public Page 2 of 8 document unlike the FIR lodged by the Police stations. Moreover, with respect to the information regarding the action taken on the complaint filed by the Appellant, it was clarified that the information would be supplied to the Appellant in due course after the investigation on the said complaint was finished in accordance with the extant guidelines of the Respondent Public Authority. Furthermore, it was informed that a matter was subjudice before the Hon'ble Supreme Court regarding the legal question of disclosure of information by Enforcement Directorate under the RTI Act, 2005 and therefore a request was made to the Commission to decide the matter keeping in view his humble submission. He was instructed to provide a copy of his written submission to the Appellant as well.
The Appellant stated that though ED was an exempted organisation u/s 24 of the RTI Act, 2005, however, the Commission had the power to decide the Appeal placed before it and direct the Respondent public Authority to provide information to the Appellant under its proviso and therefore the absolute exemption claimed by the CPIO/FAA was incorrect. A reference was made to the decision of the Commission in Decision no.
CIC/SG/A/2011/003627/17318 dated 13.02.2012 and in Decision no. CIC/AT/A/2007/01502 dated 24.10.2008 to substantiate his claim.
In this context, the Commission referred to the matter of Esab India Limited v. Special Director of Enforcement, WP (C) No. 1138/2010 dated 08.03.2011, the Hon'ble High Court of Delhi while dealing with a petition challenging the validity of Section 24 read with Second Schedule to the RTI Act, 2005 had held as under:
"27. In the case at hand, as far as Section 24 is concerned, it is evincible that the said provision excludes the intelligence and security organizations specified in the Second Schedule. We have already reproduced the Second Schedule. The petitioner is concerned with the Directorate of Enforcement which comes at serial No. 5 in the Second Scheule. What has been denied in first part of Section 24 is the intelligence and security organizations. The first proviso adds a rider by stating that an information pertaining to allegations of corruption and human right violations shall not be excluded under the sub-section. Thus, it is understood that information relating to corruption and information pertaining to human rights are not protected. In our considered opinion, the restriction on security and intelligence aspect cannot be scuttled as the same has paramountancy as far as the sovereignty and economic order is concerned. Article 19(1)(2), which deals with reasonable restriction, mentions a reasonable restriction which pertains to security of the State, integrity of India and public order.
28. In our considered opinion, the restrictions imposed are absolutely reasonable and in the name of right to freedom of speech and expression and right to information, the same cannot be claimed as a Page 3 of 8 matter of absolute right. Thus, the submissions advanced on this score are untenable and accordingly we repel the same."
In the present matter, the Commission noted that the Appellant had not sought any information which pertained to security and intelligence setup of the country but had made sustainable allegations of palpable fraudulent activities undertaken by Thomas Cook (India) Ltd. in contravention of the FEMA Rules and regulations thus causing huge suspicion on the alleged malpractices by the concerned private entity, which is a matter of serious concern.
On hearing the Appellant and on perusal of the records available, the Commission further observed that the Appellant had every right to know the outcome of his complaint filed before the Respondent Public Authority and that the plea undertaken by the CPIO/FAA stating that information could not be provided to the Appellant as per Section 24 of the RTI Act, 2005 was erroneous and misconceived. The Appellant in his RTI application had sought information pertaining to his own complaint on the allegations of corruption undertaken by Thomas Cook (India) Ltd. contravening the provisions of FEMA, the Commission found no ground on which the said information could be denied to the Appellant since larger public interest was involved in disclosure of such information.
The Commission further observed that the information sought by the Appellant pertained to generic issues in larger public interest concerning the details of his complaint and exemption claimed under Section 24 on the ground that the information was sought from the Exempted Public Organisation was untenable. It was observed that even in the context of organisation exempted from the purview of the RTI Act, 2005 under Section 24, the High Court of Punjab and Haryana in the decision of First Appellate Authority and another v. Chief Information Commissioner and Anr., CWP No. 10067 of 2010 dated 21.01.2011 had held that the exclusion provided under Section 24 to an organisation was only related to matters dealing with security and intelligence and not other matters. The relevant extracts of the judgement are mentioned below:
"7. What is not disputed here is that the notification (Annexure P-7) was issued under Section 24(4) of the Act, which postulates that nothing contained in this Act shall apply to such intelligence and security organization being organization established by the State Government as that Government may from time to time by notification in the official gazette specify.
8. Proviso to this section posits that the information pertaining to the allegation of corruption and human right violation shall not be excluded under the sub section. The words "Such Intelligence" and "Security " in this section are of great considerable significance in this context.
9. A co-joint reading of these provisions would escalate, only that information is exempted which is directly co-related and relatable to Page 4 of 8 intelligence and security of the State and not otherwise. Moreover, the information sought by respondent No.2 pertains to the allegations of corruption and against those persons who have grabbed and illegally constructed building on the Government land and action taken against them on the complaint of the complaint. Such information pertaining to allegation of corruption and human rights violations are not otherwise covered under the exemption clause as urged on behalf of petition."
The Commission drew its reference to the objective of promulgation of the RTI Act,2005 which was enacted to provide for citizens to secure, access to information under the control of public authorities and to promote transparency and accountability in the working of every public authority. The preamble of the Act reads as follows:
"An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.
WHEREAS the Constitution of India has established democratic Republic;
AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;
AND WHEREAS revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;
AND WHEREAS it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal;
NOW, THEREFORE, it is expedient to provide for furnishing certain information to citizens who desire to have it."
Much before the legislative enactment of the RTI Act, 2005, our Judiciary, in a progressive interpretation of the Constitutional provisions, had paved the way towards delineating the Right to Information. In 1975, in State of UP vs. Raj Narain (1975 AIR 865, 1975 SCR (3) 333), Justice Mathew had ruled:
"In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries."Page 5 of 8
The Hon'ble Supreme Court of India in the decision of R.B.I. and Ors. V. Jayantilal N. Mistry and Ors, Transferred Case (Civil) No. 91 of 2015 (Arising out of Transfer Petition (Civil) No. 707 of 2012 decided on 16.12.2015 observed as under:
"The ideal of 'Government by the people' makes it necessary that people have access to information on matters of public concern. The free flow of information about affairs of Government paves way for debate in public policy and fosters accountability in Government. It creates a condition for 'open governance' which is a foundation of democracy"
The High Court of Delhi in General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 regarding the disclosure of information for public interest, held:
"8. The RTI Act, as per its preamble was enacted to enable the citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. An informed citizenry and transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance."
The High Court of Bombay in Shonkh Technology International Ltd. v. State Information Commission Maharashtra Konkan Region, Appellate Authority and United Telecom Limited v. State Information Commission Maharashtra Konkan Region and Ors., W.P. Nos. 2912 and 3137 of 2011 decided on 01.07.2011 held as under
"The RTI Act is an Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. The preamble of the RTI Act itself refers to this aspect and the constitutional principles enshrined in several articles of the Constitution. It is very clearly postulated that democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold the Governments and their instrumentalities accountable to the governed. The revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. Therefore, the RTI Act seeks to harmonize these conflicting interests while preserving the paramount nature of democratic ideals."
Moreover, the Hon'ble Supreme Court of India vide its important and significant decision passed by way of resolution dated 03.10.2017 declared that decisions regarding uploading of collegiums resolutions should be uploaded on website for ensuring transparency of collegium system.
Page 6 of 8" THAT the decisions henceforth taken by the Collegium indicating the reasons shall be put on the website of the Supreme Court, when the recommendation(s) is/are sent to the Government of India, with regard to the cases relating to initial elevation to the High Court Bench, confirmation as permanent Judge(s) of the High Court, elevation to the post of Chief Justice of High Court, transfer of High Court Chief Justices / Judges and elevation to the Supreme Court, because on each occasion the mater...
The Resolution is passed to ensure transparency and yet maintain confidentiality in the Collegium system."
In Mardia Chemical Limited v. Union of India (2004) 4 SCC 311, the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, recognised the significance of Public Interest and had held as under :
".............Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country..........."
The Hon'ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 while explaining the term "Public Interest" held:
"22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]."
The Hon'ble Supreme Court in the matter of Ashok Kumar Pandey vs The State Of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the following texts for defining the meaning of "public interest', which is stated as under:
"Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus:
"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information Page 7 of 8 or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."
Moreover, the Respondent was not able to justify or substantiate his claim further with regard to denial of information u/s 24 of the RTI Act, 2005.
DECISION Keeping in view the facts of the case and submissions made by both the parties and in light of the aforesaid decisions, the Commission advises the Respondent Public Authority (ED) to provide a broad outcome of the decision in respect of the complaint filed by the Appellant, within a period of 15 days from the date of receipt of this order.
The Appeals stand disposed with the above direction.
(Bimal Julka) Information Commissioner Authenticated True Copy:
(K.L.Das) Deputy Registrar Copy to:
1- Secretary, Department of Revenue, M/o Finance, North Block, New Delhi - 110001 2- The Enforcement Director, Directorate of Enforcement, 6th Floor, Lok Nayak Bhawan, Khan Market, New Delhi-110 003.Page 8 of 8