Central Information Commission
Chandrakant H Goyal vs Western Railway Mumbai on 9 November, 2017
क य सूचना आयोग
CENTRAL INFORMATION COMMISSION
लब बि डंग (पो ट ऑ फस के पास)
Club Building (Near Post Office)
ओ ड जे न यू कपस, नई द ल -110067
Old JNU Campus, New Delhi-110067
Tel: +91-11-26182593/26182594
Email: [email protected]
File No.: CIC/AB /A/2016/000926-AB
In the matter of:
Chandrakant H. Goyal
...Appellant
VS
PIO and DPO, Divisional Office,
Western Railway, Mumbai Central
Mumbai, Maharashtra- 400008
...Respondent
Dates
RTI application : 17.03.2016
CPIO reply : 20.04.2016
First Appeal : 26.04.2016
FAA Order : 25.05.2016
Second Appeal : 31.05.2016
Date of hearing : 12.10.2017
Facts:
The appellant vide RTI application dated 17.09.2016 sought information on 2 points; copy of the complaint filed, by Smt. X (name withheld) regarding a sexual harassment case and a copy of the DRM's order on the enquiry report of the sexual harassment committee constituted to look into this complaint. The CPIO denied the information u/s 8(1) (j) of the RTI Act. The appellant was not satisfied with the reply and filed first appeal on 26.04.2016 stating that the 1 complaint was filed against him and hence, he was entitled to receive the sought for information from the respondent. The First Appellate Authority (FAA) vide its order dated 25.05.2016 denied the sought for information for the same reason as quoted by the CPIO. Aggrieved with the non-supply of the desired information from the respondent authority, the appellant filed a second appeal under the provision of Section 19 of the RTI Act before the Central Information Commission on 31.05.2016.
Grounds for Second Appeal The CPIO did not provide the desired information.
Order
Appellant : Present
Respondent : APIO, Smt. Manisha Mavlankar, APO
During the hearing the appellant submitted that no charge-sheet was framed in the present case against the appellant but at the same time no copy of the complaint was also provided to him. As a result, his right to defend himself against the said complaint, i.e. the charge of sexual harassment was violated as a copy of the said complaint was not provided to him even when the said inquiry by the designated committee was being conducted. He submitted that he was not aware of the contents of the complaint made against him. He added that although he was not found guilty by the enquiry committee, he had undergone acute mental trauma during the enquiry process and even at this point of time also he was being denied his basic right to defend himself against public ignominy. Hence, he should be informed of the contents of the complaint at least by the respondent authority now.
Per contra the respondent PIO pleaded that all the relevant documents were shown to the appellant during the enquiry process itself. She also submitted that the third party, i.e. the complainant was personally present during 2 the hearing & she had objected to the furnishing of the said complaint copy to the appellant.
The appellant submitted during the hearing before the CIC that the whole process of enquiry was not maintainable as it was calculated to cause him public disrepute in the society. He submitted that he had a right to obtain a copy of the complaint to prove to the society at large that the complaint was malicious and baseless.
On the basis of the submissions made by both the parties & the relevant documents, the Commission is of the opinion that the information sought by the appellant is a part of record under Sec 2(f) of the RTI Act. The only issue which is required to be decided here is whether the same is exempted u/s 8 of the RTI Act or is non disclosable u/s 16 of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The respondent had contended during the hearing before the Commission that the disclosure of personal details available in the complaint would lead to invasion of privacy, as the complainant had provided a no. of personal details to her employer i.e. the railways. The railways i.e. the respondent held these details in a fiduciary capacity (employer-employee relationship) and therefore a copy of the said complaint is non disclosable under Sec 8(1)(e) of the RTI Act. It was noted by the Commission that the First Appellte Authority (FAA) in its order dated 25.05.2016 had denied the said information u/s 8(1)(j) of the RTI Act as well as under Sec 16 of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The Commission is of the opinion that as the said enquiry was conducted against the present appellant, the copy of the DRM's order on the enquiry report of the "Sexual Harassment Committee" as sought for in the para (b) of the above stated RTI application is disclosable to the appellant as the same is not exempted under any of the provisions of the RTI Act. In respect of para (a) of the said RTI application in which a copy of the complaint submitted against him was sought, the Commission is of the view that the appellant has every right to 3 know the contents of the complaint against him unless these are expressly barred under any of the provisions of the RTI Act or of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Though the First Appellate Authority claimed that the relevant information was held by them in a fiduciary capacity (relationship), the above plea is not maintainable. The CPIO also submitted a copy of the letter dated 15.04.2016 in which the third party (i.e. the complainant) had objected to the disclosure of the copy of the complaint. The Commission is not inclined to accept that the copy of the complaint can be denied to the appellant on the pretext of being third party's personal information u/s 8(1)(j) of the RTI Act when adequate care has been taken by the Legislature while enacting the Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013 to protect the complainant's privacy. Moreover, it was also seen that invoking Sec 16 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 for denying a copy of the complaint to the appellant who was the accused in the same case is also misplaced as it violates the basic principle of right to defend oneself from any charge, civil or criminal.
Against the above backdrop, the Commission finds it relevant to rely on the decision of the Coordinate bench of the CIC in a similar case having a comparable subject matter in which Sec 16 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was interpreted and information sought was provided to the respondent in a sexual harassment case. The relevant portion of the decision dated 01.05.2017 in the case no. CIC/YA/A/2016/001444 is as follows:
"Both the parties are present and heard. The appellant states that he had been denied the statements made by the witnesses as well as the complainant, which is required by him to prove his innocence. Upon a query by the Commission, the CPIO states that the enquiry was conducted by 'Sexual Harassment Committee' and the competent authority had exonerated the appellant giving him 'benefit of doubt'. He also states that exoneration of appellant has subsequently been set aside by Hon'ble Delhi High Court in WP(C) 7502/2015. The respondent reiterates that the appellant is expanding the purport of the original 4 query whereas the same has been answered adequately. He also mentions the bar on disclosure of information as contained in Section 16 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The PIO also relied upon the decision of the Commission in Mr. R.P. Meena vs. CPIO, North Western Railway [CIC/VS/A/2015/000664] to advance his argument. Decision:
It is admitted position that certain accusations were levelled against the appellant, which became the subject matter of enquiry by 'Sexual Harassment Committee'. The competent authority exonerated the appelant and recorded reasons for his decision. The part of the file noting wherein reasons & decision of the competent authority is reflected was disclosed to the appellant. However, the appellant seeks copies of complete file notings which essentially refers to the testimonies of aggrieved, witnesses & other evidence adduced. The appellant feels discriminated against since similar information was furnished to Ms. "X" (name withheld), the complainant without any objection by the PIO.
Section 16 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 reads as:
Section 16 - Prohibition of publication or making known contents of complaint and inquiry proceedings Notwithstanding anything contained in the Right to Information Act, 2005(22 of 2005), the contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner:
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 woman and witnesses.
The real intent behind the aforesaid provision which operates as a rider to the Right to Information is to exclude the following classes from sourcing any information under the RTI Act. Such classes as enumerated in the Section 16 (supra) are:
'public, press and media' 5 The moot question is whether disclosure of the information sought would attract prohibition of Section 16 or not. Notably, the information has been sought by a person against whom the proceedings under the Prevention of Sexual Harassment Act were conducted. It is a settled proposition of statutory interpretation that provisions which put embargo on a right must be construed strictly and the Courts should desist from adding or deleting the meaning & connotation of the words used. A literal interpretation of the aforesaid provision simply ouster 'public, press and media' from gaining access to information relating to following:
contents of the complaint made under section 9;
the identity and addresses of the aggrieved woman; respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be; and the action taken by the employer or the District Officer.
The legislature has not debarred the complainant or respondent (against whom the accusation has been made) from securing information in the foregoing context. I derive force from Rule VII of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013. Relevant portion is reproduced hereinafter:
VII. Manner of inquiry into complaint.-
i. Subject to the provisions of Section 11, at the time of filing the complaint, the complainant shall submit to the Complaints Committee, six copies of the complaint along with supporting documents and the names and addresses of the witnesses.
ii. On receipt of the complaint, the Complaints Committee shall send one of the copies received from the aggrieved woman under sub-rule (1) to the respondent within a period of seven working days. iii. The respondent shall file his reply to the complaint along with his list of documents, and names and addresses of witnesses, within a period not exceeding ten working days from the date of receipt of the documents specified under sub-rule (1).
iv. The Complaints Committee shall make inquiry into the complaint in accordance with the principles of natural justice. ............................................ vi. The parties shall not be allowed to bring in any legal practitioner to represent them in their case at any stage of the proceedings before the Complaints Committee.6
Rule VII (ii) prescribes for supply of copy of complaint to the respondent. Rule VII (iv) expressly lays that the inquiry shall be conducted in consonance with principles of natural justice. Until and unless a person knows what has been alleged against him & the evidence through which the charge is sought to be brought home; the Commission wonders, how one would defend himself! Thus, given the plain meaning of words used in Section 16 & Rule VII, the Commission holds both 'Complainant' & 'Respondent' to be beyond the restriction imposed by Section 16. As a necessary corollary to the aforesaid legal position, a complainant as well as respondent (accused) can validly seek information relating to the proceedings instituted under Sexual Harassment of Women at Workplace (Prevention. Prohibition and Redressal) Act, 2013, provided, the same does not attract exemption under clause (h) of Section 8(1) of the RTI Act, 2005 ie. during the pendency of the enquiry/ investigation.
In the present case, the Commission is concerned with the sole aspect of disclosure of file notings made leading to decision of competent authority resulting in exoneration of appellant. The Commission has been apprised about the outcome of the W.P. (Civil) No. 7502/2015 whereby, the decision dated 27.03.2015 of the competent authority exonerating the appellant was set aside. The operative portion reads as:
10. Consequently, the present writ petition is allowed and the order dated 27th March, 2015 is set aside. Respondent No. 1 is directed to take a fresh decision within a period of four weeks after giving an opportunity of hearing to the petitioner as well as respondent No. 3. Needless to say that the Respondent No.1 shall take a decision in accordance with the law. The reasoned order shall be communicated to the petitioner and respondent No. 3. by registered AD post. It is clarified that this Court has not expressed any opinion on the merits of the controversy and the rights and contentions of all parties are left open.
The decision, which was set aside by Hon'ble High Court, though becomes inoperative & devoid of any force, however, it still forms part of the record and within the expression 'information' u/s 2(f).
The decision in Mr. R.P. Meena vs. CPIO, North Western Railway [CIC/VS/A/2015/000664] rendered by a coordinate bench of this Commission does not advance the cause of the respondent since the same does not lay any ratio and thus, has no universal application. No other 7 point of fact or law was canvassed by either party before the Commission.
Accordingly, the Commission sets aside the FAO and directs the CPIO to furnish only certified copies of entire file notings leading to exoneration of the appellant by the competent authority. The information shall be furnished free of cost within 2 weeks of receipt of this order.
(Yashovardhan Azad) Information Commissioner"
Following the above ratio, the Commission observed that the information sought in both the paras of the RTI application is eminently disclosable and as a result the reply of the CPIO and the First Appellate Authority are set aside by this Commission. The CPIO is accordingly directed to provide the requisite information to the appellant as available on record, within 15 days from the receipt of this order. However, before complying with the order, the CPIO shall mask the name(s) of the third parties in the copy of the complaint and the copy of the DRM's order u/s 10 (severability clause) of the RTI Act to ensure that names of third parties are not disclosed.
With the above direction, the appeal is disposed of Copies of this order be sent to both the parties free of cost.
[Amitava Bhattacharyya] Information Commissioner Authenticated true copy (A.K. Talapatra) Deputy Registrar 8