Central Information Commission
Mr.O P Mehra vs Union Public Service Commission on 30 April, 2010
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2009/000197 dated 25.2.2009
Right to Information Act 2005 - Section 19
Appellant - Shri O. P. Mehra
Respondent - Union Public Service Commission (UPSC)
Decision announced: 30.4.2010
Facts:
By an application of 8.8.08, Shri O.P. Mehra of Frazer Road, Ajmer applied to CPIO Shri P. P. Nagrath, UPSC seeking the following information with regard to charges recorded against him:
"4.1 Whom did UPSC found to be the "superior officer" and when did he give the instruction to 'charged official'? 4.2 Had charged official ever worked under 'that superior officer' in administrative hierarchy?
4.3 What was the designation / status of the Charged Official (CO) on day of 'instruction'?
4.4 The reasoning by which UPSC arrived at the decision that 'instruction was from the superior officials' and 'the instruction was legal and authorized'?
4.5 The reasoning by which UPSC arrived to the conclusion that the response of 'charged official' was 'unbecoming of railway servant' or was not in conformity with the 'Indian Railway Stores Code' or was in variance with any other rules / practice of Indian Railways / GOI. 4.6 Did UPSC notice and make remarks on the fact that the Major penalty charge sheet was issued despite the fact that investigating agency i.e. CBI had neither made any allegation nor submitted any "Draft article of charge' or 'Draft statement of imputation' against the charged official Shri O.P. Mehra as essentially required for initiating Disciplinary Action in terms of IRVM para 315 and CVC Vigilance Manual para 4.12.2? 4.7 Did UPSC notice and make remarks on the fact that 'disagreement memo' given by DA was false and fabricated and was withdrawn altogether in the speaking order of DA? 4.8 Did UPSC notice and make remarks on the fact that DA had awarded the penalty of the 'censure' with the reasoning in the speaking order reading "Whatever be the reason ...."?
4.9 Did UPSC notice and make remarks on the fact that Railway Board at the Stage of Second Stage Advise had observed that the case was far fetched and that prosecution side was prejudiced, hence has 1 proposed for dropping the charges altogether? (Relevant file noting of Railway Board is being enclosed herewith).
4.10 Did UPSC notice and make remarks on the fact that charges on the co-accused Shri R. N. Meena the bill passing officer, were related to his action of releasing payment on 27.2.03, whereas the 'disobedience' on which DA issued penalty order was on the instruction dated 3.4.03 ( i.e. one month after making payment).
4.11 Did UPSC notice and make remarks on the fact that Shri R. N. Meena was a person of different cadre and much junior in service from CO, and has no connection in administrative hierarchy? 4.12 Did UPSC notice and make remarks on the fact that Shri R. N. Meena, the co-accused was made prosecution witness against CO, despite the fact that CBI had recommended Major penalty charge sheet against Shri R. N. Meena, in same case?
4.13 Did UPSC notice and offer remarks on the fact that this Article of Charge was self contradictory? (If one refused to do the inspection, and Recommends for inspection by professional agency, like RITES as was the case, he can no way give any unintended benefit to the supplier) 4.14 Did UPSC notice and give remarks on the fact that Shri R. N. Meena the bill passing officer had stated that he had given the original license of software to SDGM & CVO before passing the bill and that that license was never seen thereafter?
4.15 Did UPSC notice and give remarks on the fact that Shri R. N. Meena had given the photocopy of license referred in para 4.14 above to the CBI but CBI declared the software supplied as fake / pirated without investigating this copy. (Photo copy of licenses, obtained from CBI under RTI Act is enclosed herewith.) 4.16 Did UPSC notice and offer remarks on the fact that SDGM & CVO had made complaint to the CBI on 30.7.03 i.e. one month after receiving complete material including software by replacing the software from Group Licensed Software to independently licensed software? 4.17 Please give the copy of the remarks referred in para 4.6 onwards above.
4.18 What are the protections available against such harassment and victimization against fraudulent use of the vigilance machinery? (Fraudulent because article of charges were unfounded, second stage advice was based upon falsehood and penalty of censure was imposed for 'whatever be the reasons...") 4.19 Is there any system by which UPSC can call back the case and restudy?"
To this Shri O.P. Mehra received a response from CPIO Shri Bachchan Kujur, Dy. Secretary seeking to answer each of the questions raised, as follows:
"Para 1 2 The Ministry had sent the records relating to the case as per proforma/check list as prescribed in GOI instruction 39 (Procedure to be followed for referring disciplinary cases to UPSC for advice) below Rule 14 of CCS(CCA) Rules, 1965 (as mentioned in the Swami's compilation of CCS (CCA) Rules 2005 edition). The entire case records sent by the Ministry have been returned to them alongwith the letter dated 27.5.2008 communicating the advice of the Commission.
Para 2 As far as your request to provide the copies of the Notings of the case file is concerned, it is intimated that the Commission's letter No. 3/249/07-SI dated 27.5.2008, contains the detailed findings of the Commission in the disciplinary case, which are mainly based on the notings on the file. The Advice letter contains all relevant facts of the case, detailed analysis, reasoning and arguments etc. It is a self contained and speaking advice letter where nothing relevant is left out and a copy of which shall be provided to you by the DA alongwith its final order.
It is further stated that the notings on the disciplinary cases filed are basically part of decision making process. It may contain or include information / opinion / views / facts not only about the cases of the charged officer but also about other officers, other cases, other departments / officers, opinion etc. given in fiduciary capacity or in confidence. The information or facts may also pertain to such other cases whose divulsion (sic) is exempted u/s 8 (1) (i) of RTI Act. It may not be in larger public interest to disclose such information. Para 3 In case you are asking for the copy of the advice letter of the UPSC in the disciplinary case against you it may be noted that the letter communicating the observations and the advice of the Commission has been conveyed to the Ministry as an advice to the President, which is fiduciary in nature. According to prescribed rules, a copy of UPSC's advice letter is to be provided to you by the Ministry alongwith the final order passed by the Disciplinary Authority. Therefore, in terms of clause 1(e) of RTI Act 2005 the copy of the letter conveying the advice of the Commission to the President, being fiduciary in nature, may not be made available to you by the UPSC.
Para 4 It may please be noted from the contents of points No.4.1 to 4.19 of para 4 of your application that the points raised by you are either queries or in the form of seeking opinion / comments of the CPIO on the advice of the Commission in the disciplinary proceedings initiated and concluded against you and not about the information available with the CPIO as defined under Sec. 2(f) of the RTI Act 3 2005. The CPIO cannot assume the role of justifying or commenting upon the advice of the Commission nor will such comments / justification on the advice of the Commission be treated as 'information' under Sec. 2(f) of RTI Act, 2005.
However, it may be noted that the advice of the Commission was sought in the case in accordance with the requirement of consultation with them as laid down in Article 320 (3) © of the Constitution of India read Regulation 5(1) of the UPSC (Exemption from consultation) Regulation 1958. The Ministry had sent the records relating to the case as per proforma / check list as prescribed in GOI instructions 39 (Procedure to be adopted for referring disciplinary case to UPSC for advice) below Rule 14 of CCS(CCA) Rules, 1965 (as mentioned in the Swami's compilation of CCS(CCA) Rules, 2005 Edition). The Commission tendered their advice after a thorough, judicious and independent consideration of all the relevant facts and circumstances of the case based on the concerned relevant case records. The advice of the Commission conveyed to the Ministry as an advice to the President, a copy of which shall be supplied to the applicant along with Ministry's final order, is self explanatory."
Nevertheless, aggrieved with this response, Shri Mehra has moved an appeal before Shri R. K. Sinha, Jt. Secretary, UPSC dated 22.9.2008 pleading that "none of the contents of above reply are in conformity of either letter or spirit of RTI Act." His conclusion in this appeal is as below:
"A. What I have asked is the Information necessary to be kept in records in carrying out the designate function of UPSC in accordance to rule 27(2) of CCAS (CCA) Rules, 1965. B. Information asked in my application is not prohibited by any section of the RTI Act.
C. For third party information, if any, necessary action was not taken in accordance to sec. 11 of the RTI Act."
With specific to the spirit of the RTI Act, Shri Mehra has objected to the response received with regard to para 3, as follows:
"Para 3 In this para CPIO have quoted section 8(1) (e) of RTI Act, for denial of information by considering the information being fiduciary in nature.
The exact term used in section 8(1) (e) of RTI Act is 'fiduciary relationship", the literary meaning of which is a relationship based upon trust or faith. The relationship and transaction of information 4 between UPSC and Ministry of Railways is not fiduciary but it is integral part of the official functioning of two public authorities and governed by the laid down rules of GOI. The asking the advice and giving the advice, both are normal functions of the concerned Public Authorities, transparency of which was the paramount objectives of the RTI Act. Therefore, application of section 8(1)(e) for denial of information related to normal functioning of UPSC is antithetic to the basic spirit of the RTI Act, as stated in preamble of the Act, i.e. "promoting transparency and accountability in the working of Public Authorities."
The appeal was allowed in part by Jt. Secretary UPSC Shri Sinha in his order of 20.10.08, as follows:
"a) The appellant desires to have the copy of GOI instruction 39 as stated by CPIO in his letter dated 28.8.08. I hereby direct CPIO to provide GOI instruction 39 as requested by the appellant.
b) The appellant's contention that information to him cannot be denied under Sec. 8(1) (i) of RTI Act 2005 is correct because it pertains to the information related to Cabinet papers. I hereby direct the CPIO to provide the information if it cannot be otherwise denied under the RTI Act.
c) Contention of the appellant in para 3 regarding fiduciary relationship as per Sec. 8(1) (e) of RTI Act 2005 is not correct because as per the ibid section, there shall be no obligation to give any citizen 'information available to a person in his fiduciary relationship unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information". No direction is warranted in this regard.
d) CPIO's reply in respect of queries / information sought by the appellant in his application at point No. 4.1 to 4.17 is correct as per the RTI Act 2005.
e) The appellant's request that para 4.18 and 4.19 had erroneously been linked with the advice of the UPSC is correct. I hereby direct CPIO to reply to the points / information sought in para 4.18 and 4.19 of the appellant's letter dated 8.8.2008, if it cannot be otherwise denied under the RTI Act.
f) Request of the appellant regarding action in terms of Sec. 11 of the RTI Act is not warranted and reply of the CPIO is otherwise complete."5
In compliance with the orders of the Appellate Authority, CPIO Shri Bachchan Kujur, Dy. Secretary has, in a detailed letter of 19.11.08, provided the following further information:
"a) The GOI instruction 39 (Procedure to be followed for referring disciplinary cases to UPSC for advice) below Rule 14 of CCS (CCA) Rules, 1965 (as mentioned in Swami's Compilation of CCS (CCA) Rules, 2005 Edition) is the extract of the OM No. F.18/9/63-Ests (B) dated 4.8.1964 issued by M/O Home Affairs. A photo copy of the typed copy of the said OM available in our records along with the photo copies of earlier instructions and subsequent modification in this regard are sent herewith.
b) The information has been denied under clause 8(1) (e) of RTI Act, 2005. Due to typographical error clause 8(1) (e) was typed as clause 8(1) (i) in para 2 of CPIO's reply dated 28.8.2008. Inconvenience caused is regretted.
c) In para 4.18 of the application dated 8.8.2008, the applicant wants to know the protections available against such harassment and victimization against fraudulent use of vigilance machinery. In this regard, it may be stated that since rules, regulations, instructions etc. regarding disciplinary proceedings against government employees are formulated / issued by the Department of Personnel & Training, Govt. of India, appropriately the applicant may address this question to that Department. The UPSC are only an advisory body and the disciplinary authorities seek their advice in disciplinary cases in accordance with the requirement in consultation with them as laid down in Article 320(3)( c) of the Constitution read with regulation 5(1) of the UPSC (Exemption from Consultation) Regulation, 1958.
UPSC are consulted by the President / D.A. at the final stage of a disciplinary proceeding conducted by the disciplinary authority. The disciplinary authorities send the records relating to disciplinary case in terms of the proforma / checklist prescribed for referring disciplinary cases to the Commission. The Commission tender their advice after a thorough, judicious and independent consideration of all the relevant facts and circumstances of the case based on the concerned relevant case records. Relevant rules, regulations, instructions etc. do not prescribe any role for the Commission in initiation of disciplinary proceedings.
In para 4.19 of the application dated 8.8.2008, the applicant wants to know if there is any system by which UPSC can call back the case and restudy. In this regard, it is stated that 6 there is no provision in relevant rules, regulations, instructions etc. for the Commission to, on their own, call back the case and restudy it. The UPSC are only an advisory body and it is the disciplinary authorities who seek their advice in disciplinary cases in accordance with the requirement in consultation with them, as laid down in Article 320(3)( c) of the Constitution read with regulation 5(1) of the UPSC (Exemption from Consultation) Regulation, 1958. The disciplinary authorities send the record relating to disciplinary case in terms of the proforma / checklist prescribed for referring disciplinary cases to the Commission. The Commission tender their advice after a thorough, judicious and independent consideration of all the relevant facts and circumstances of the case based on the concerned relevant case records."
Appellant Shri O.P. Mehra's prayer before us in his second appeal is as below:
"1. Penalty to CPIO / UPSC for denial of information on illegal grounds.
2. Corrective action by the UPSC for non-performance of its functions.
3. Suitable compensation for causing undue delay and hardship in realization of Right to seek information from the public authority."
In this appeal, appellant Shri O. P. Mehra has once more challenged the response to each of his points, as below:
"Para 1 From above it can be seen that -
1) CPIO had misled the applicant by referring an imaginary GOI instruction 39.
2) CPIO had denied the information without giving any reasons or rules of RTI Act. The reasons mentioned by CPIO for denial has nothing to do with RTI Act. Para 2
a) The use of world 'may' clearly explain that it is presumption of CPIO. He has made no attempts to verify his contention.
b) Such information / opinion / views / facts" are part of the functioning of the Public Authority. The basic purpose of the RTI Act is to 'promote transparency and accountability in the working of every public authority". Therefore, on 7 prima-facie such "information / opinion / views / facts" cannot be denied to the citizenry.
c) Being it part of normal functioning of the Public Authority, by considering it 'fiduciary' Public Authority in fact is shying away in responsibility of being transparent and accountable in its functioning. By no stretch of imagination, such information can be considered as "fiduciary" in nature.
d) Even if the information related to "others" were to be denied, the Public Authority had option to apply severance clause of sec. 10(1) and provide rest of the information.
From above, it can be seen that CPIO have given reasons without verifying the contention. He has intentionally and willfully denied the information, in violation of the provisions of RTI Act."
Para 3 Every Public Authority shall provide reasons for administrative or quasi judicial decisions to affected person. The advice imparted by UPSC in this case is one such administrative decision hence I, being affected person, have right to access to it.
Moreover, it has Public Interests involved"
Para 4.1 to 4.17 I have reasons to believe that UPSC have willfully denied the information to prevent the exposure of dereliction of duties on their party.
Para 4.18 My representation exposing the falsehood of Disagreement Memo and speaking order of DA thereon was ignored altogether in my 1st Appeal para 4(iii), I had asked confirmation of this faux pas, but receive no response."
Para 4.19 In accordance with Indian Railway Servant (Disciplinary and Appeal Rules) 1968 there is no provision of Review as well as Revision of the penalties, if new facts or evidence come to the notice of concerned authority. Review as well as Revision can be made only after the advice of UPSC."
The appeal was heard on 21.4.2010 through video conference. The following are present:
Appellant at NIC Studio, Ajmer Shri O.P. Mehra Respondents at CIC chambers, New Delhi Shri R. K. Sinha, Jt. Secretary 8 Shri Y. P. Gupta, Dy. Secretary / CPIO Appellant Shri Mehra submitted that the investigation of this case is over and so the information should have been given. On failure to do so, he has pleaded that a penalty must be imposed. He further submitted that at the time he had submitted his second appeal before us i.e. 22.12.08, the matter then in appeal had already been decided on 8.12.08. On the other hand, respondent Shri R. K. Sinha submitted that the reference to instruction 39 is in accordance with Swami's compilation in CCS (CCA) Rules, 2005 Edition, which had already been explained to appellant Shri Mehra by CPIO Shri Bachchan Kujur who has also attached a copy of the OM dated 4.8.64 on which this compilation is based, in which cases of appeal in departmental proceedings against Government Servants are required to follow the following procedure:
"Cases of appeal While forwarding an appeal to the Commission, there should not be any expression of opinion on the merits of the case; it should, however, be ensured that comments of the Disciplinary Authority as required under rule 29 of the Central Civil Services ( Classification, Control and Appeal) Rules or a corresponding rule are invariably sent to the Commission."
DECISION NOTICE From the above, it is clear that during the time that the application of 8.8.08 was under process with the UPSC, they had provided all the information that was held by them at the time. As submitted by appellant, this case has finally been decided on 8.12.08 which is well after the final orders of UPSC on 20.10.08 and, therefore, the final disposal of the case could not be taken into account at the time that the order was passed.
Under the circumstances, we cannot find any fault in the response provided by the UPSC which is infact painstaking. On the other hand, if, as a result of the investigation, now being complete and over, including in appeal, Shri Mehra is free to move a fresh application before the UPSC to obtain details of all 9 the information that he had earlier been refused, which now the CPIO, UPSC will be duty bound to supply. The appeal is disposed of accordingly.
Reserved in the hearing, this decision is announced on this 30 th day of April, 2010 in open chambers. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 30.4.2010 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 30.4.2010 10