Central Information Commission
Sonali G Badhe vs Department Of Revenue on 18 March, 2019
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.(s):- CIC/DIREN/A/2017/143426-BJ +
CIC/DOREV/A/2018/123741-BJ
Ms. Sonali G Badhe
....अपीलकता/Appellant
VERSUS
बनाम
1. CPIO
Directorate of Enforcement
6th Floor, Lok Nayak Bhawan
Khan Market, New Delhi - 110003
2. CPIO & Under Secretary
Ministry of Finance
Department of Revenue
Room No. 55, North Block
New Delhi - 110001
... ितवादीगण /Respondent
Date of Hearing : 14.03.2019
Date of Decision : 18.03.2019
ORDER
RTI 1 File No. CIC/DIREN/A/2017/143426-BJ Date of RTI application 05.04.2017 CPIO's response 08.05.2017 Date of the First Appeal 19.05.2017 First Appellate Authority's response 14.06.2017 Date of diarised receipt of Appeal by the Commission 28.06.2017 FACTS:
The Appellant vide her RTI application sought information on 03 points regarding the order against Mr. A.C. Singh, D.L.A. (HQ), Directorate of Enforcement in the Complaint against him for Sexual Harassment at Workplace, details regarding implementation of the order, if not implemented then reasons thereof, etc. The CPIO vide its letter dated 08.05.2017 denied disclosure of information on the ground that their organization was exempted from the purview of the RTI Act, 2005 as per Section 24 r/w the Second Schedule of the Act. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 14.06.2017 concurred with the response of the CPIO.
Page 1 of 8
RTI 2 File No. CIC/DOREV/A/2018/123741-BJ
Date of RTI application 29.01.2018
CPIO's response 06.03.2018
Date of the First Appeal 15.03.2018
First Appellate Authority's response 04.04.2018
Date of diarised receipt of Appeal by the Commission 13.04.2018
FACTS:
The Appellant vide her RTI application sought permission to inspect all files and record relating to her sexual harassment case against Mr. A.C. Singh, D.L.A. (HQ), Directorate of Enforcement, take extracts or certified copies of documents or records, etc. The CPIO, vide its letter dated 06.03.2018 stated that the information was not sought in public interest but in private interest and denied the request for inspection of the file/ documents under Section 11 of the RTI Act, 2005. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 04.04.2018, concurred with the response of the CPIO.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Dr. Sonali G Badhe through VC;
Respondent: Mr. Vipin, APIO and Mr. Prashant Pandey, Legal Consultant, Enforcement Directorate and Mr. Vivek Mishra, US, Dept. of Revenue;
The Appellant (available at NIC studio at Kolkata) reiterated the contents of the RTI application and stated that the desired information was not provided in both the matters. In support of her contention she referred to the decision of the Commission in CIC/BS/A/2014/000265 dated 20.04.2017 and submitted that the information sought pertained to violation of her human rights hence exemption under Section 24 r/w the Second Schedule of the RTI Act, 2005 could not be claimed by the Dte of Enforcement. She also submitted that the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 was enacted with an objective to provide protection to women at workplace and accordingly being the Complainant herself she was entitled to receive the information. In its reply, the Respondent (Dte of Enforcement) submitted that the copy of the order dated 28.07.2016 passed by the Dte. of Enforcement in compliance with the order dated 21.06.2016 passed by the Hon'ble President in the matter of sexual harassment case had already been provided to the Appellant vide letter dated 14.12.2016 which was acknowledged by her vide letter dated 26.12.2016. Furthermore, vide letter dated 24.03.2017, the copy of the salary slip for the month of September 2016 and July 2013 were also provided to the Appellant as requested by her in her letter dated 26.12.2016. The RTI application and the First Appeal was rejected since there was no corruption or human right issue involved since the Appellant had merely sought administrative information regarding the implementation of the order of 21.06.2016 passed by the Dept. of Revenue in the complaint against the official mentioned in the RTI application. The Respondent (Dept. of Revenue) reiterated the response of the CPIO / FAA and submitted that being Third Party information Page 2 of 8 inspection of the file pertaining to the complaint of sexual harassment filed by the Appellant could not be disclosed. On being queried by the Commission regarding the reason why the Appellant being the complainant herself in the present matter was not entitled to seek the information, no satisfactory response was offered by the Respondent. Similarly when questioned about the existence of human rights violation in cases of sexual harassment, no satisfactory answer was offered by the Respondent who reiterated that the information sought was of an administrative nature. The Appellant vide letter dated 05.03.2019 requested the Commission to change the venue of video conference from Ahmedabad to Kolkata as she was posted in Kolkata since the last five months. The DR to IC (BJ) vide e-mail dated 05.03.2019 addressed to the Appellant confirmed the change of VC to Kolkata.
The Commission was also in receipt of a written submission from the Respondent (Dte. of Enforcement) dated 13.03.2019 wherein it was stated that the copy of the order dated 28.07.2016 passed by the Dte. of Enforcement in compliance with the order dated 21.06.2016 passed by the Hon'ble President in the matter of sexual harassment case had already been provided to the Appellant vide letter dated 14.12.2016 which was acknowledged by her vide letter dated 26.12.2016. Furthermore, vide letter dated 24.03.2017, the copy of the salary slip for the month of September 2016 and July 2013 were also provided to the Appellant as requested by her in her letter dated 26.12.2016. The RTI application and the First Appeal was rejected since there was no corruption or human right issue involved since the Appellant had merely sought administrative information regarding the implementation of the order of 21.06.2016 passed by the Dept. of Revenue in the complaint against the official mentioned in the RTI application. Furthermore, it was again emphasized that the copy of the order dated 28.07.2017 implementing the DORs order dated 21.06.2016 had already been provided to the Appellant by the Dy. Dir. (Admn.) vide letter dated 14.12.2016. Apart from the aforementioned factual position it was submitted that they were exempted under Section 24 r/w Second Schedule of the RTI Act, 2005. In support of their contention, the Respondent referred to the judgment of the Hon'ble High Court of Delhi in the matter of Esab India Ltd. vs. Special Director of Enforcement WP(C) No. 1138/2010 dated 08.03.2011, decision in the matter of Bimal Kumar Bhattacharya dated 19.02.2018 in support of their contention and prayed to dismissed the Appeals. The Hon'ble High Court of Delhi in the matter of CPIO CBI vs. CIC and Anr. W.P.(C) 11092/2017 & CM Nos.45346/2017, 45348/2017 & 2610/2018 dated 02.02.2018 while explaining the term "Human Rights" had held as under:
9. The expression „Human Rights‟ denotes certain inalienable rights which every individual has by virtue of being a member of the Human Family. In December, 1948, the U.N. General Assembly adopted the Universal Declaration of Human Rights. In December, 1965 the UN General Assembly adopted two covenants for observance of Human Rights: (i) The International Covenant on Civil and Political Rights; and (ii) Covenants on Economic, Social and Cultural Rights. India is a party to the said covenants.
10. India has also enacted The Protection of Human Rights Act, 1993 to provide for better protection of human rights and matters connected therewith or incidental thereto. The expression „Human Rights‟ is defined under Section 2(1)(d) of the said Act to mean "the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India".
The Commission also referred to the decision of the Apex Court in the matter of Apparel Export Promotion Council vs. A. K. Chopra, AIR 1999 SC 625 wherein while reiterating the Visakha Ruling, the Court held as under:-
Page 3 of 8"There is no gainsaying that each incident of sexual harassment, at the place of work, results in violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty the two most precious Fundamental Rights guaranteed by the Constitution of India.... In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated...."
The Commission would also referred to the observations made by R. Banumathi J. in the matter of Mukesh and Ors. vs. State of NCT of Delhi and Ors (the Nirbhaya Case) Criminal Appeal Nos. 607-608 of 2017 (Arising out of SLP (Criminal) Nos. 3119-3120 of 2014) and Criminal Appeal No. 609-610 of 2017 (Arising out of SLP (Criminal) Nos. 5027-5028 of 2014) dated 05.05.2017, wherein while affirming the death sentence awarded to the accused persons, several pertinent observations relating to Crimes against Women and Gender Justice were made. The relevant extract of the decision is mentioned as under:
"506. The incident of gang-rape on the night of 16.12.2012 in the capital sparked public protest not only in Delhi but nation-wide. We live in a civilized society where law and order is supreme and the citizens enjoy inviolable fundamental human rights. But when the incident of gang-rape like the present one surfaces, it causes ripples in the conscience of society and serious doubts are raised as to whether we really live in a civilized society and whether both men and women feel the same sense of liberty and freedom which they should have felt in the ordinary course of a civilized society, driven by rule of law. Certainly, whenever such grave violations of human dignity come to fore, an unknown sense of insecurity and helplessness grabs the entire society, women in particular, and the only succour people look for, is the State to take command of the situation and remedy it effectively.
507. The statistics of National Crime Records Bureau which I have indicated in the beginning of my judgment show that despite the progress made by women in education and in various fields and changes brought in ideas of women's rights, respect for women is on the decline and crimes against women are on the increase. Offences against women are not a women's issue alone but, human rights issue. Increased rate of crime against women is an area of concern for the law-makers and it points out an emergent need to study in depth the root of the problem and remedy the same through a strict law and order regime. There are a number of legislations and numerous penal provisions to punish the offenders of violence against women. However, it becomes important to ensure that gender justice does not remain only on paper.
508. We have a responsibility to set good values and guidance for posterity. In the words of great scholar, Swami Vivekananda, "the best thermometer to the progress of a nation is its treatment of its women." Crime against women not only affects women's self esteem and dignity but also degrades the pace of societal development. I hope that this gruesome incident in the capital and death of this young woman will be an eye-opener for a mass movement "to end violence against women" and "respect for women and her dignity" and sensitizing public at large on gender justice. Every individual, irrespective of his/her gender must be willing to assume the responsibility in fight for gender justice and also awaken public opinion on gender justice. Public at large, in particular men, are to be Page 4 of 8 sensitized on gender justice. The battle for gender justice can be won only with strict implementation of legislative provisions, sensitization of public, taking other pro-active steps at all levels for combating violence against women and ensuring widespread attitudinal changes and comprehensive change in the existing mind set. We hope that this incident will pave the way for the same."
It was observed that 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 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 also referred to the judgment pronounced by Hon'ble Delhi High Court in its decision on 09.10.2013 in (W.P. (C) 7453/2011, Union of India & ors v. Adarsh Sharma) observed as under:
Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section:"
Therefore, the provisions of the RTI Act would not apply to the aforesaid organisation except in the matters relating to allegations of corruption and human rights violation.
5. ....However, in my view, if an information of the nature sought by the respondent is easily available with the Intelligence Bureau, the agency would be well-advised in assisting a citizen, by providing such an information, despite the fact that it cannot be accessed as a matter of right under the provisions of Right to Information Act."Page 5 of 8
In this context, the Commission would also refer to a very recent decision of the Hon'ble High Court of Delhi in the matter of Union of India vs. Central Information Commission and Anr. in WP (C) 13257/2018, CM Appl. No. 51572-51573/ 2018 dated 07.12.2018, wherein the Court while upholding the decision of the Commission directing the Directorate of Enforcement to disclose the information held as under:
"In the present case, the respondent is an employee of the petitioner and sought information as under:
(1) Copies of all the seniority list in respect of LDCs for the period of 1991 till date.
(2) Copies of the proposal for promotion of LDCs placed before the DPC together with copies of the Minutes of the Meetings and copies of the promotion orders issued on the recommendations of the DPC from time to time."
Since the respondent was facing prejudices regarding the seniority, therefore, he sought information mentioned above, which information neither hamper with the Intelligence nor Security nor Secrecy of the petitioner organization. Though the petitioner organization is kept away from RTI Act, but that is not regarding the information to its employee, if any of his rights have been denied. The information sought by the respondent from the petitioner does not come under the Section 24 of the Act. Accordingly, I find no illegality or perversity in the order of the CIC dated 09.10.2018."
The Commission also referred to the proviso to Section 16 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 which reads as under:-
"Provided that information may be disseminated regarding the justice secured to any victim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved women and witnesses."
In the context of providing her own information to the information seeker, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Kamal Bhasin v. Radha Krishna Mathur and Ors., W.P.(C) 7218/2016 dated 01.11.2017 wherein it was held as under:
"6. In the present case, the petitioner stands as a relator party as he is also one of the complainants. The petitioner is not seeking any personal information regarding respondent No. 3, but merely seeks to know the outcome of the complaint made by him and other such complaints. The PFC Officers Association had pointed out certain conduct which according to them was irregular and warranted disciplinary action; thus, they would be certainly entitled to know as to how their complaints have been treated and the results thereof.
7. Section 8 (1) (j) of the Act reads as under:- "8. Exemption from disclosure of information.-(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- xxxxxxxxx (j) information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the Central Page 6 of 8 Information Commission appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information."
8. It is apparent from the plain reading of the aforesaid clause that in order to claim exemption from disclosure of any information, the essential conditions that must be satisfied are: (i) that it is personal information the disclosure of which has no relationship to any public activity or interest; or (b) that it would cause unwarranted invasion of the privacy of the individual. However, even if the aforesaid conditions are satisfied, the Central Public Information Officer or the State Public Information Officer or the Appellate Authority may disclose the information if they are satisfied that the larger public interest justifies the disclosure of such information.
9. The proviso of Section 8 (1) of the Act is also important and reads as under: "Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person."
10. By virtue of the aforesaid proviso to Section 8(1) of the Act, it is enacted that information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. In the present case, it was doubtful whether information as to the fate of the complaints can be considered as personal information that has no relationship with public interest or public activity. The activity of the Central Vigilance Department includes investigation and taking action in cases of corruption. Secondly, the complaint related to the allegations of misconduct and how these complaints were treated were clearly matter of public interest.
11 In the circumstances, this Court directs the respondent to disclose to the petitioner as to what action had been taken pursuant to his complaint and other similar complaints made against the then CMD. The petitioner would not be entitled to any notings and deliberations of the Group of Officers or Disciplinary Authority but only information as to what action was taken in relation to the complaints in question."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and respecting the spirit of the decision of High Court in WP (C) 13257/2018, CM Appl. No. 51572- 51573/ 2018 dated 07.12.2018 as also the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013, the Commission instructs the Respondents to disclose all information sought by the Appellant within a period of 15 days from the date of receipt of this order. The contention of the Respondent seeking protection under Section 24 of the RTI Act, 2005 is untenable and unjustified in relation to the definition of Human Rights as enshrined in the judgment of the High Court in W. P. Hon'ble High Court of Delhi in the matter of CPIO CBI vs. CIC and Anr. W.P.(C) 11092/2017 & CM Nos.45346/2017, 45348/2017 & 2610/2018 dated 02.02.2018 which inter alia highlights the provision relating to the dignity of an individual as also the decision of the Apex Court in Mukesh and Ors. vs. State of NCT of Delhi and Ors (the Nirbhaya Case) Criminal Appeal Nos. 607-608 of 2017 (Arising Page 7 of 8 out of SLP (Criminal) Nos. 3119-3120 of 2014) and Criminal Appeal No. 609-610 of 2017 (Arising out of SLP (Criminal) Nos. 5027-5028 of 2014) dated 05.05.2017. It is unfortunate that the Respondent Public Authority had consistently taken recourse to the provisions under Section 24 without examining the nature of information sought by the applicants. Such judicial flirtations taking protection under Section 24 of the Act was unwarranted.
The Appeals stand 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: 18.03.2019
Copy to:-
1. Secretary, Department of Revenue, M/o Finance, North Block, New Delhi - 1100012.
2. The Enforcement Director, Directorate of Enforcement, Lok Nayak Bhawan, Khan Market, New Delhi-110 003.
Page 8 of 8