Central Information Commission
H K Fulwariya vs Chief Commissioner Of Income Tax (Cca) , ... on 10 October, 2018
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग
, मुिनरका
Baba Gangnath Marg, Munirka
नई द
ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/CCITJ/A/2017/150645-BJ
Mr. H. K. Fulwaria,
....अपीलकता
/Appellant
VERSUS
बनाम
CPIO & ITO (HQ.),
O/o the Pr. Commissioner of Income Tax,
Income Tax Office, Rani Bazar,
Room No. 5, Bikaner-334001 (Rajasthan)
... ितवादीगण /Respondent
Date of Hearing : 09.10.2018
Date of Decision : 10.10.2018
Date of RTI application 17.04.2017
CPIO's response 04.05.2017
Date of the First Appeal 01.06.2017
First Appellate Authority's response 23.06.2017
Date of diarised receipt of Appeal by the Commission 22.07.2017
ORDER
FACTS The Appellant vide his RTI application had sought information on 02 points regarding comments made by the Chief Commissioner of Income Tax on his letter dated 05.10.2016, copy of complaint filed against the Appellant on the basis of which letter dated 28.02.2017 was issued to him and issued related thereto.
The CPIO, vide letter dated 04.05.2017, denied disclosure of information under Section 8(1) (h) of the RTI Act, 2005. Dissatisfied with the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 23.06.2017, provided additional clarifications to the Appellant regarding the orders passed by the CPIO in two different dates. HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. H. K. Fulwaria (ITO) through VC;
Respondent: Mr. Murlidhar Mundotia, ITO (HQ) through VC;Page 1 of 5
The Appellant reiterated the contents of his RTI application and stated that complete information had not been provided to him. Moreover, it was argued that in his own case, Section 8 (1) (h) was not applicable and that a copy of the complaint filed against him be furnished to him redacting the name of the Complainant. Responding to the request of the Appellant, it was explained by the Respondent that the complaint made against the Appellant was under investigation and had been referred to Anti Corruption Bureau. With regard to denying the delivering of the copy of the complaint under Section 8 (1) (g) / 10 of the RTI Act, 2005, no plausible explanation could be offered. The Commission was in receipt of a written submission from the Appellant dated 25.09.2018, wherein while re-iterating the reply of the CPIO/ FAA, it was stated that the exemption claimed u/s 8 (1) (h) was wrong and inapplicable to his case since he did not seek information regarding any criminal offence and neither were any allegations leveled against him in the said complaint. Moreover, no prosecution proceedings were pending against him in the Court. Moreover, the information sought did not pertain to any third party but related to his own case. While alleging that the FAA decided the appeal without any application of mind, the Appellant re-iterated that the information was sought regarding the allegations made against him in the complaint and not regarding the details of the Complainant. Thus, while referring to the decision of the Commission in T.C. Gupta vs CPIO/ Addl DIT (Vig), IT Department, New Delhi in CIC/RM/A/2014/000941/BS/8767 dated 07.10.2015 and the decision of the Hon'ble High Court of Delhi in Union of India vs. D.N. Kar W.P.( C) No. 4056/ 2008 dated 14.09.2010, it was prayed to provide him the information and impose penalty and disciplinary action against the CPIO.
The Commission was also in receipt of a written submission from the Respondent dated 03.10.2018, wherein it was stated that the First Appellate Authority dismissed the appeal since information on both the points related to confidential correspondence between two officers in the department regarding which a final decision was pending. Hence disclosure of information at this stage was not warranted. As regards providing the copy of complaint, it was stated that while taking into consideration, the safety and security of the Complainant, the information was denied u/s 8 (1) (g) of the RTI Act, 2005. Furthermore, a clarification was also issued with regard to the reference made to two different dates in the CPIOs response by stating that the same was done inadvertently. Moreover, the matter of the Appellant was also pending adjudication before the Addl. Director General (V) (W) CBDT, Mumbai.
The Commission referred to the definition of information u/s Section 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
Page 2 of 5"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
The Commission referred to the decision of the Hon'ble Supreme Court in the matter of CBSE and Anr. Vs. Aditya Bandopadhyay and Ors, 2011 (8) SCC 497 in the context of claiming exemption u/s 8 (1) (g) of the RTI Act, 2005, held as under:
"53. The answer book usually contains not only the signature and code number of the examiner, but also the signatures and code number of the scrutiniser/co-ordinator/head examiner. The information as to the names or particulars of the examiners/co- ordinators/scrutinisers/head examiners are therefore exempted from disclosure under Page 3 of 5 Section 8(1)(g) of the RTI Act, on the ground that if such information is disclosed, it may endanger their physical safety. Therefore, if the examinees are to be given access to evaluated answer books either by permitting inspection or by granting certified copies, such access will have to be given only to that part of the answer book which does not contain any information or signature of the examiners/coordinators/scrutinisers/head examiners, exempted from disclosure under Section 8(1)(g) of the RTI Act. Those portions of the answer books which contain information regarding the examiners/co- ordinators/scrutinisers/head examiners or which may disclose their identity with reference to signature or initials, shall have to be removed, covered, or otherwise severed from the non-exempted part of the answer books, under Section 10 of the RTI Act."
The aforesaid decision was relied in the matter of Bihar Public Service Commission vs. Saiyed Hussain Abbas Rizwi and Anr., CIVIL APPEAL NO. 9052 OF 2012 dated 13.12.2012 wherein it was held as under:
"30. The above reasoning of the Bench squarely applies to the present case as well. The disclosure of names and addresses of the members of the Interview Board would ex facie endanger their lives or physical safety. The possibility of a failed candidate attempting to take revenge from such persons cannot be ruled out. On the one hand, it is likely to expose the members of the Interview Board to harm and, on the other, such disclosure would serve no fruitful much less any public purpose. Furthermore, the view of the High Court in the judgment under appeal that element of bias can be traced and would be crystallized only if the names and addresses of the examiners/interviewers are furnished is without any substance. The element of bias can hardly be co-related with the disclosure of the names and addresses of the interviewers. Bias is not a ground which can be considered for or against a party making an application to which exemption under Section 8 is pleaded as a defence. We are unable to accept this reasoning of the High Court. Suffice it to note that the reasoning of the High Court is not in conformity with the principles stated by this Court in the CBSE case (supra). The transparency that is expected to be maintained in such process would not take within its ambit the disclosure of the information called for under query No.1 of the application. Transparency in such cases is relatable to the process where selection is based on collective wisdom and collective marking. Marks are required to be disclosed but disclosure of individual names would hardly hold relevancy either to the concept of transparency or for proper exercise of the right to information within the limitation of the Act."
As regards the exemption claimed u/s 8 (1) (h) of the RTI Act, 2005, the Commission referred to decision of K.S. Prasad Vs SEBI, CIC/AT/A/2007/007/00234 wherein it had been held as under:
"...as soon as an investigation or an enquiry by a subordinate Enquiry Officer in Civil and Administrative matters comes to an end and, the investigation report is submitted to a higher authority, it cannot be said to be the end of investigation. ... which can be truly said to be concluded only with the decision by the competent authority."
In this context a reference can be made to the decision of the bench of the Commission in Shri Arun Kumar Agrawal v. SEBI CIC/SM/A/2012/000196 dated 28.11.2014 wherein it was held as under:
Page 4 of 5"15. In the present case, final orders are yet to be passed by the competent authority under the SEBI Act. Therefore, the process of investigation against the RIL is still pending before SEBI and it cannot be said the same has reached its conclusion. Hence, the requested information falls under exemption under section 8(1) (h) of the Act.
16. The Commission recognizes the perspective brought out on public interest in the course of the hearing. The appellant had underlined emphatically the dimensions of public interest overriding the protected interest, i.e. the protection given to the 'fiduciary' elements. However, the other side argued that the appellant is overstating the public interest without taking into account that the investigation is still going on. We have, therefore, to await the completion of this investigation. It will not be wise for the Commission to speculate as to what conclusions the SEBI will draw."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission directs the Respondent to provide a copy of the complaint to the Appellant in accordance with Section 8 (1) (g) r/w Section 10 of the RTI Act, 2005 within a period of 15 days from the date of receipt of this order.
The Appeal stands disposed accordingly.
Bimal Julka (िबमल जु का)
Information Commissioner (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 10.10.2018
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