Central Information Commission
Mr.Anil Kumar vs Ministry Of Communications And ... on 18 December, 2013
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26101592
File No. CIC/BS/A/2012/001284+001285/4155
18 December 2013
Relevant Facts emerging from the Appeal:
Appellant : Mr. Anil Kumar
B-1, Samhita Vista,
1st Main, 2nd Cross,
Pai Layout, Vidya Nagar,
Bangalore-560016
Respondent : CPIO & Chief Manager (Civil)
ITI Limited
ITI Bhavan, Dooravaninagar,
Bangalore-560016
File no. CIC/BS/A/2012/001284
RTI application filed on : 10/04/2012
PIO replied on : 17/05/2012
First appeal filed on : 13/06/2012
First Appellate Authority order : 13/07/2012
Second Appeal received on : 04/01/2013
Information sought:
The appellant had sought following information related to his retirement benefits etc. he had retired from services on 31/03/2012 and there was no disciplinary proceedings pending against him before retirement:
1. Decision taken/order given/approval given for not releasing my retirement benefits.
2. The rules/procedures/manuals/circulars/office orders considered while arriving at the above decision for not releasing my retirement benefits.
3. Action taken on my letter ref. no. Retirement benefit/Anil/ dt/ 09/04/2012 address to GMHR w.r.t. letter no. COHR/19916 dtd. 02/01/2012 & my letter dtd. 02/04/2012 to him while returning photo badge & medical by the CMHR--- copy of action taken/order issued may be given to me.
4. Action taken on my letter ref no. retirement/Anil/1 dtd 10/04/2012 addressed to the CMD as DA & CVO for intervention of my retirement benefits withheld illegally by the concerned agencies.
5. What is the company laid down policy, procedure, rule regarding withholding the retirement benefits of any employee/officer; please provide certified copy of the same.Page 1 of 8
Grounds for the Second Appeal:
Complete and satisfactory information has not been received and some of the information has been denied under Section 8(1)(h) of the RTI Act.
Relevant Facts emerging during Hearing held on 20/09/2013:
The following were present Appellant: Mr. Anil Kumar through VC M: 9341631985 Respondent: Mr. H S Mahesh CPIO through VC M: 9845146087 The appellant stated that a vigilance enquiry was conducted against him and he was awarded "severe displeasure" and wants copies of the investigation and the enquiry report based on which the punishment was awarded. The CPIO while admitting that the entire process of the disciplinary proceedings are complete and over stated that he will have to consult the CVO/CVC, AGM(HR)/AA and the disciplinary authority in the matter and hence needs time to make his detailed written submissions and requested that adjournment should be granted for the purpose.
Interim Decision notice dated 20/09/2013:
As requested by the CPIO it is decided to grant adjournment and invite written submissions from both the parties demonstrating their stand on the issue at hand so that the full contentions are brought on record. Accordingly, the appellant and the CPIO should furnish their submissions to the Commission (endorsing a copy to each other) by 25/10/2013.
The hearing is adjourned for 11/11/2013 at 4.00 PM
File no. CIC/BS/A/2012/001285
RTI application filed on : 10/04/2012
PIO replied on : 17/05/2012
First appeal filed on : 13/06/2012
First Appellate Authority order : 13/07/2012
Second Appeal received on : 04/01/2013
Information sought:
The appellant through another RTI application dated 30.04.2012 sought information against 14 queries spread over three pages related to details of action taken by CMD on letter number Retirement/benefit/anil/1 dated 18/04/2012, details of action taken by CVO on letter dated 19/04/2012, details of complaint against him, whether it was anonymous complaint, copy of approval taken for investigating the complaint, copies of duty charter, action taken by CVO to expedite his case as per CVC guidelines and other related information.
Grounds for the Second Appeal:
Complete and satisfactory information has not been received and some of the information has been denied under Section 8(1)(g) & (h) of the RTI Act.
Relevant Facts emerging during Hearing held on 20/09/2013: The following were present Appellant: Mr. Anil Kumar through VC M9341631985 Respondent: Mr. H S Mahesh CPIO through VC M: 9845146087 The appellant stated that he wants the information requested in query 2 (viz. details of action taken by CVO on my letter dated 19/04/2012 in response to his letter COR/VG/COMP/319/12 dated 17/04/2012.) of his RTI application dated 30/04/2012 Page 2 of 8 which has been denied claiming exemption under Section 8(1)(g) & (h) of the RTI Act. The CPIO stated that he has to consult the CVO in the matter and hence needs time to make his detailed submissions and requested that adjournment should be granted for the purpose.
Interim Decision notice dated 20/09/2013:
As requested by the CPIO it is decided to grant adjournment and invite written submissions from both the parties demonstrating their stand on the issue at hand so that the full contentions are brought on record. Accordingly, the appellant and the CPIO should furnish their submissions to the Commission (endorsing a copy to each other) by 25/10/2013.
The hearing is adjourned for 11/11/2013 at 4.00 PM File nos. CIC/BS/A/2012/001824+001825 Relevant Facts emerging during Hearing on 11/11/2013:
The following were present Appellant: Mr. Anil Kumar through VC M: 9341631985 Respondent: Mr. B N M Shetty APIO through VC M 9945842402 The APIO stated that the detailed submissions in the matter have been sent to the Commission vide letter dated 17/10/2013. However, it is seen that the said submissions have not been received till date. The appellant stated that in both the matters he is only pressing for (i) copy of the investigation/enquiry / preliminary investigation/enquiry report along with the enclosure(s) (ii) the remarks recorded by the DA & (iii) copy of the CVC's 1st stage advice. The APIO stated that information may be exempt and hence an opportunity should be given to him to make written submissions in the matter.
Interim Decision Notice:
As requested by the APIO it is decided to give an opportunity to the respondent to give their written submissions to the Commission regarding the disclosure of the above information by 30/11/2013. A copy of the submissions should be endorsed to the Appellant.
The hearing is adjourned for 18/12/2013 at 4.00 PM.
In both the matters the appellant has identified three specific information which he seeks and the arguments of both parties are common, hence, the two matters are clubbed and fixed for hearing together so that they can be disposed of by a common order.
The Commission had received written submissions dated 17.10.2013 from the Respondent wherein the APIO, ITI Ltd. had invoked exemptions under Section 8 (1) (h), 8 (1) (g) and 10 (1) of the RTI Act in respect of furnishing the certified copy of the Investigation report to the Appellant.
The APIO specified that the non disclosure of the information is on account of the vindictive conduct of the Appellant post receipt of the Complaint and the procedural limitations in furnishing of documents as prescribed by the Central Vigilance Commission.
The APIO has elaborated in his submissions that furnishing certified copy of Investigation report to the alleged employee will tantamount to violation of CVC Page 3 of 8 guidelines, since the guidelines do not lay down providing of investigation reports as a mandatory condition for conducting enquiry proceedings. It has further been stated by the APIO that CVC in fact provides protection to the Complainants under PIDPI Resolution and hence exemption under Section 8(1) (g) of the RTI Act was specifically sought by the Respondent in order to avoid disclosure of the identities of Vigilance Functionaries. The Respondent emphasised that considering the nature of the scrutiny conducted against the Appellant, masking the identity of the Investigating personnel and sources of information is very difficult. Hence, it was imperative for the Department to take steps to prevent disclosure of information about the Vigilance Functionaries in order to protect them from potential dangers of physical harm through retribution, both by the complainant and by the Appellant. The APIO has submitted that furnishing certified copy of Investigation report could have far reaching consequences on the morale and professional efficiency of the Vigilance personnel including the endeavours of CVO/CVC to combat corruption.
The APIO's submissions also indicate that certain references in the Complaint are related to investigations on GSM Project implementation and the Appellant's name does not feature in the investigation nor statement has been taken from him as Suspected Public Servant in the investigation. Hence information relating to such part of the investigation cannot be divulged to him since copies of reference documents pertaining to the GSM Project Investigation being unrelated to the Appellant are thus exempt from disclosure under Section 8 (1)(h) of the RTI Act. The APIO has also emphasised the fact that being a former Vigilance Functionary as well as General Manager, the Appellant is well conversant with the practice and procedure applicable in Vigilance matters. The Respondent APIO has elaborated that upon receipt of the signed complaint on 20.03.2012 against the Appellant, the CVO-ITI had on the same afternoon furnished a copy of the said complaint (while masking identity of the Complainant) to the Appellant. The Appellant had in fact submitted his response to the said Complaint on 21.03.2012 itself upon meeting the CVO-ITI. Thus fair and equitable opportunity to defend himself had been duly granted to the Appellant and the Appellant was actually informed about the Complaint received against him ten days before his superannuation. The conduct of the Appellant in handing over charge and return of documents/photo badge/medical diaries/library cards etc. have also been discussed by the APIO in his submissions. However, since the same are not the issue at hand before the Commission, hence they are not dealt with here.
The Commission received some further submissions dated 29.11.2013 from the Respondent wherein the CPIO has stated that neither a Show Cause notice was issued to the Appellant nor enquiry was conducted against the Appellant by Disciplinary Authority. The preliminary investigation report relating to the Appellant was prepared based on details obtained from other sources and correspondences available with the Corporate Vigilance Department. Among the twenty documents listed as E-1 to E-20 relied upon in preparing the preliminary Investigation report, it has been stated by the Respondent that copy of complaint (E1), copy of the communication dated 20.03.2012 from the CVO-ITI to the Appellant (E2) and copy of the Appellant's response dated 21.3.2012 (E3) have been furnished to the Appellant, concealing the identity of the Complainant. The Respondent has further submitted that information with respect to evidence document (E4) has also been provided to the Appellant. The Respondent states that the first part of the information from evidence document E5 can be provided which pertains to the details of tours undertaken by the Appellant performing in his capacity as Vigilance functionary while blocking the Source of information. While the second part of the same evidence document pertains to third party. Even the information contained in evidence documents E6 to E8 contain third Page 4 of 8 party information and hence the said information are exempt from disclosure under Section 8(1)(j) of the RTI Act. The respondent CPIO has added that the evidence documents E9 to E 17 relate to investigation of some other project, which does not feature the name of the Appellant. The CPIO states that details contained in the said documents (E9 to E17) are third party information and held confidential by ITI Vigilance department thereby attracting exemption under Section 8 (1) (g). The CPIO has further contended that the evidence documents namely E18 to E20 relate to investigation with respect to third parties information, wherein the name or mention of the Appellant does not feature. Hence, the CPIO has sought exemption from disclosure of third party information relating to ongoing investigation under Section 8 (1)(h).
The CPIO has placed reliance on decisions passed by the CIC and the Supreme Court to substantiate his arguments. The decision dated 30.6.2009 in case no. CIC/AT/A/2009/000200 titled Y.R. Iyer vs. Customs Department; decision dated 16.09.2009 in case no. CIC/AT/A/2009/000617 titled K.L. Bablani vs. Directorate General Vigilance, Customs & Central Excise have been referred wherein the CIC has upheld views of the Public Authority on the grounds that file notings/ correspondences etc. of Vigilance department have been directed to remain confidential in nature. The CPIO has also relied upon the SC decision in Bihar Public Service Commission vs. Saiyed Hussain Abbas Rizwi & Anr. emphasising their claim of exemption under Section 8 (1)(g) of the RTI Act. This has been followed by rebuttals and counter allegations from the Appellant vide communication dated 03.12.2013.
Relevant Facts emerging during Hearing on 18/12/2013:
The following were present Appellant: Mr. Anil Kumar through VC M: 9341631985 Respondent: Mr. H S Mahesh CPIO & Mr. Krishna Prasad DGM Vig through VC The CPIO stated that the appellant has filed six complaints against various officials including a complaint against the DGM (Vigilance) and his conduct is indicative of threat and hence supplying copy of the preliminary investigation report may endanger the physical safety of officers who have investigated/recorded their findings. He further stated that the DA (who has since retired) has expressed similar apprehension with regard to his notings. The appellant contested stating that he has made complaints in his name to the CVO only for rooting out possible corruption and he has been a senior executive of the respondent public authority and his personal conduct throughout his career has been highly disciplined and hence any apprehension in the mind of the respondent regarding unbecoming conduct on his part is grossly misplaced. He further argued that in case of any unbecoming conduct the respondents have the remedy to file an FIR.
Decision Notice:
The facts of the matter are simple. A few days before the appellant retired a complaint was received against him on 20/03/2012 and a copy of the same (after masking the identity of the complainant) was provided to him on the very date by the CVO-ITI and the appellant submitted his response to the complaint on 21/03/2012. Thereafter, based on a preliminary investigation report and in consultation with the CVC minor penalty of 'severe displeasure' was awarded to the appellant. The proceedings stand fully concluded.
The appellant is now asking for (i) a copy of the preliminary investigation report alongwith the annexures (ii) the remarks recorded by the DA and (iii) copy of the CVC first stage advice. In all their arguments both written and oral the respondent have Page 5 of 8 basically emphasized exemption under Section 8 (1)(g)&(j) of the RTI Act for denying the information sought by the appellant.
The crux of the respondents' argument in not disclosing the information is that it would be violative of the CVC guidelines as the guidelines do not lay down providing of investigation report as a mandatory condition for conducting inquiry proceedings. The respondents have contended that masking the identity of the investigation personnel and the source of information is very difficult and it is imperative for the department to take steps to prevent disclosure of information about vigilance functionaries in order to protect them from potential danger of physical harm through retribution both by the complainant and the appellant. The respondents have further contended that in such circumstances disclosure of information would have far reaching consequences on the morale and professional efficiency of vigilance personal affecting endeavors to combat corruption. It is also argued that certain documents contain information/references related to third party(s).
The respondents have cited certain past rulings by the Commission holding that file notings/correspondence etc. of vigilance department are confidential and need not be disclosed. They have also relied on Supreme Court decision in the matter of Bihar Public Service Commission Vs Saiyad Hussain Abbas Rizvi & anr.
The Commission finds it pertinent to note that provisions of the Section 22 of the RTI Act overrides all other laws including the Official Secrets Act and hence any alleged violation of the CVC guidelines is not a sustainable argument.
The respondent have emphatically argued that masking the identity of the source of information is very difficult and it is imperative to take steps to protect vigilance functionaries from potential danger or physical harm through retribution both by the complainant and the appellant. If this is indeed true then one wonders how a copy of the complaint was suo motu provided by the respondent to the appellant.
In a public undertaking person(s) who carry out investigation or generate file notings or render an opinion is(are) presumed to be a person who is objective and not conflicted by virtue of his interest in the matter, on which he is called upon to deliberate. If that position holds, then it can neither be argued nor can it be conceived that the investigation report or notes on file or opinions rendered in an institutional setup by one officer qua the working or conduct of another officer can have any adverse consequences on the morale and professional efficiency or hamper the endeavors to combat corruption.
The respondents have relied on certain past rulings as mentioned above to buttress their arguments. However, in so far as the instant matter is concerned the legal position stands settled by subsequent pronouncements of the Hon'ble Delhi High Court, as discussed below.
The Hon'ble Delhi High Court in the decision in the case of Col. V K Shad decided on 09.11.2012 in WP(C) No. 499/2012 wherein the decisions of the Apex Court in CBSE vs. Aditya Bandopadhyay and Shaunak Satya were dealt with and based on the said decisions of the Apex Court, the Hon'ble High Court held as hereunder:
" 20.4 ...............A denial of access to such information to the information seekers, i.e., the respondents herein, (Messers V.K. Shad & Co.) especially in the circumstances that the said information is used admittedly in coming to the Page 6 of 8 conclusion that the delinquent officers were guilty, and in determining the punishment to be accorded to them, would involve a serious breach of principles of natural justice, as non-communication would entail civil consequences and would render such a decision vulnerable to challenge under Article 14 of the Constitution of India provided information is sought and was not given....".
The Hon'ble Delhi High Court in its recent decision dated 10.10.2013 in WP (C) No. 4079/2013 in the matter of UPSC vs. G S Sandhu while dealing with similar contentions as in the matter at hand involving disciplinary proceedings and has also discussed the decision of the Apex Court in the case of Bihar Public Service Commission and has held as under:
" ...11. In my view, the apprehension of the petitioner that if the identity of the author of the file notings is revealed by his name, designation or in any other manner, there is a possibility of such an employee being targeted, harassed and even intimidated by the persons against whom an adverse noting is recorded by him on the file of UPSC, is fully justified. Though, ultimately it is for the members of the UPSC who are to accept or reject such notings, this can hardly be disputed that the notings do play a vital role in the advice which UPSC ultimately renders to the concerned department. Therefore, the person against whom an adverse advice is given may hold the employee of UPSC recording a note adverse to him on the file, responsible for an adverse advice given by UPSC against him and may, therefore, harass and sometime even harm such an employee/officer of UPSC, directly or indirectly. To this extent, the officers of UPSC need to be protected. However, the purpose can be fully achieved by blocking the name, designation or any other indication which would disclose or tend to disclose the identity of the author of the noting. Denying the notings altogether would not be justified when the intended objective can be fully achieved by adopting such safeguards.
12. Personal Information As regards clause (j), it would be difficult to dispute that the exemption cannot be claimed when the information is sought by none other than the person to whom the personal information relates. It is only when the information is sought by a third party that such an exemption can be claimed by UPSC. If, the notings recorded on the file and/or the correspondence exchanged between UPSC and the concerned department do contain any such information which pertains to a person other than the information seeker and constitutes personal information within the meaning of section 8(1)(j), the UPSC was certainly be entitled to refuse such information on the ground that it is exempted from disclosure under clause 8(1)(j) of the Act.
............................................................................................ ............................................................................................. For the reasons stated hereinabove, the writ petitions are disposed of with the following directions:-
(i) the copies of office notings recorded in the file of UPSC as well as the copies of the correspondence exchanged between UPSC and the Department by which its advice was sought, to the extent it was sought, shall be provided to the respondent after removing from the notings and correspondence, (a) the date of the noting and the letter, as the case may be;
(b) the name and designation of the person recording the noting and writing the letter and; (c) any other indication in the noting and/or correspondence which Page 7 of 8 may reveal or tend to reveal the identity of author of the noting/letter, as the case may be;
(ii) if the notings and/or correspondence referred in (i) above contains personal information relating to a third party, such information will be excluded while providing the information sought by the respondent......"
In the light of the observations of the Hon'ble Delhi High Court in the above cited cases and the clearly established legal position, the Commission is of the considered opinion that the petitioner in this case seeking information pertaining to preliminary investigation/disciplinary proceedings carried out against himself and the documents forming part of such proceedings cannot be denied to him under the provisions as cited by the respondent. Such denial will constitute, as held by the Hon'ble Delhi High Court, serious breach of principles of natural justice. Considering the respondents' apprehension as reflected in their seeking of exemption under Section 8(1)(g) of the RTI Act, the information as sought by the appellant be furnished to him within 15 days from the date of receipt of this order after redacting the dates, names, designations and/or any other indication which may reveal or tend to reveal the identity of the author. Also in so far as those parts of the information which relate to third parties and where the name of the appellant does not feature (as stated by the respondent in their submissions dated 29/11/2013) such information which do not concern the investigation/disciplinary proceedings of the appellant but relates to the personal information of some third person can be excluded while providing the information to the appellant.
The appeal is disposed of accordingly.
BASANT SETH Information Commissioner Authenticated true copy:
(A.K.Jha) Deputy Secretary and Deputy Registrar Page 8 of 8