Central Information Commission
Col. A. D. Nargolkar vs Ministry Of Defence (Mod) on 4 December, 2008
CENTRAL INFORMATION COMMISSION
Complaint Nos. CIC/WB/C/2008/00735 dated 19.6.2008
& CIC/SM/C/2008/00040 dated 19.6.2008
Right to Information Act 2005 - Section 18
Appellant - Col. A. D. Nargolkar
Respondent - Ministry of Defence (MoD)
Facts
These are two appeals on a similar subject that were clubbed and heard together. However, our Decision was reserved on File No. CIC/WB/C/2008/00735. This Decision therefore deals only with the appeal in File No CIC/SM/C/2008/00040.
By an application of 23.7.08 addressed to Brig. M. R. Pattar, P&A HQ Southern Command Pune, Col. A.D. Nargolkar, pleading a threat to life and liberty, submitted a request seeking following information:
Information required about said Discreet Inquiry "12. Information be please given of officially itself duties of Military Intelligence to ascertain whether such Discreet Inquiry of individual cases falls within its scope.
13. Information be please given regarding Internal Policy in Army on Discreet Inquiries by Military Intelligence as this one, value of such a Discreet Inquiry and as to when do such Discreet Inquiries acquire legal status on which specific legal action as stopping promotion can be taken. Such information with Army has not been exempted from being supplied on excuses of it being "sensitive" etc; vide an internet RTI news report dated 12th November, 2007 (attached).
14. Information of composition of this Discreet Inquiry to include names of Presiding Officer, Members and Investigating Officers of Military Intelligence.
15. Information of Convening Order/ formal written instructions if any by appropriate authority, for this Discreet Inquiry if issued, to commence action and for it to have legal status, since no witnesses from the said Discreet Inquiry appeared, 1 deposed, gave any statement before the Court of Inquiry subsequently held in Nasirabad December 2007. Hence the cloud of suspicion over the very existence/ conduct of the said Discreet Inquiry and suspicion that it never was executed. This is needed for me to bring out possible malafides by Army Authorities in legal representation subsequently.
16. Recommendations of all intermediate authorities/ Staff Officer's at Army HQ or HQ Southern Command, till the final decision making authority. Directions of Final Competent Authority on Proceedings of this Discreet Inquiry.
17. Information of all Notings on the subject by any/ all Staff Officers involved by way of my being allowed, after due orders by the Hon'ble CIC, to peruse all files on my case at Army HQ (DV Directorate), HQ Southern Command (DV branch), HQ 21 Corps (DV Branch) and HQ 41 Arty Div ( A Branch).
18. Information as to whether a legal procedure was adopted and as to what authority sanctioned Invasion of my Privacy as in finding out from the Service Provider M/s Hutch India about the alleged 87 SMSs supposed to have originated from my mobile number to that of the complainant Mr. D. S. Pundhir as stated in said Affidavit in Reply dated 18.3.08 on page 6, Para4. These are two separate questions and be answered separately.
19. Information whether input from this discreet Inquiry or statements by witnesses therein has been formally recorded in writing by the CVO of the Army i.e. the ADG (DV) of AGs Branch at Army HQ or HQ Southern Command, including recorded oral inputs if any, as provided for vide Section 4.4
(a) to (h) of Chapter 4, Vol I of the CVC Manual. Whether these inputs from the Discreet Inquiry have been perused and Directions/ Orders passed on it at any level to specifically carry out withholding of Discipline and Vigilance (DV) Clearance, thereby stopping my promotion to Brigadier.
Copies of such statements be supplied to me since not a single witness was produced in this regard by the Army Authorities during the Court of Inquiry held subsequently in December 2007 at Nasirabad near Jaipur.
20. The copies of connected Notings in files be also made available to me, since Notings in files are documents too and 2 are not exempted from supply under RTI Act 2005 as per various Decision Notices by the esteemed CIC.
Information Required about Basis/ Actions regarding my Non Promotion.
21. I be please allowed to peruse files related to my case at Army HQ (MS Branch), Hq 21 Corps (MS Branch), and HQ 41 Arty Div (A) and take copies of documents related to ascertaining information about reasons for my non- promotion and information whether withholding of DV clearance stopping promotion was done by the empowered authority as the DV Directorate at Army HQ, or merely by HQ Southern Command as is known to me, in which case it is an illegal act. This is since the Dy MS (Artillery) Brigadier YS Sangra specifically informed me that my promotion was withheld due to a Confidential letter from HQ Southern Command and not from DV Dte at Army HQ as is the correct procedure. This information will help ascertain if any arbitrary letter by HQ Southern Command served the purpose of withholding of DV Clearance stopping promotion. If true, it is an illegal action and I can challenge it.
22. Information whether HQ 41 Arty Div acted on my series of correspondences and requests about reasons for my non promotion, or whether it was callously and malafidely not acted upon. In case of the latter it is a Gestapo like an arbitrary action, so names of the Staff Officers and/ or Commanders as GOC 41 Arty Div, GOC 21 Corps and Army Commander Southern Command specifically responsible for not so informing me, which can be extracted from these records. Penalty be imposed on these negligent Officers as and if deemed fit by the Commanders-in-chain, for illegally denying me information due to me between June 2007 and March 2008, i.e. for 10 months, if it falls within the preview and powers of the Hon'ble CIC.
Information required on Responsibility of my Severe Humiliation.
23. Please find attached my letter No. ADN/ 38032/95/08 dated 27th May 2008 addressed to all HQs in hierarchy, seeking the person responsible for my serve Humiliation by way of making me wait in Nasirabad when no witnesses were confirmed to appear, as also during the festival of Diwali, for the period 04-17 November 2007. Since the said letter gives all details, contents are not repeated here."
3To this he received a response initially on 29.7.08 from Brig. P.R. Sangam, DDG (RTI) and CPIO, as follows:
"At the outset, it is intimated that by merely stating that you are ailing for past six weeks is not sufficient causes to invoke the clauses of 'life and liberty' to seek information under RTI Act, 2005. The information sought is required for filing appeals to courts/ alternate remedy u/s 27 of Army Act wherein there is urgency but no threat to your life and liberty. Your application, therefore, can not be treated under the life and liberty clause of RTI Act 2005.
The application will be treated as a routine RTI Act application and information will be provided to you on receipt within the time stipulated in the Act."
Thereafter, he received a response also from Office of Provost Marshal dated 1.8.08 in which Col. Prabhat Kumar, Dy. Provost Marshal informed him as follows:
"Your above letter seems to be a combination of application and appeal, which cannot be entertained by the appellate authority this Headquarters as per procedure for processing of appeals as laid down in the RTI Act, 2005.
Subsequently, through a letter of 26.8.08, HQ Southern Command informed him as follows:
"(a) Information about Discreet Inquiry. The information sought by you cannot be provided as the same is exempted from disclosure under section 8 (1) (g) & (j) of the said Act. The required information was given in confidence to the competent military authority for law enforcement and security purposes. Further, this relates t()J:J-s5ID-
LLr1J()rr11fltiQn,tbedisciosure ot wbLchJ1 (sic) as no relationship to any public activity or interest.
(b) Information about the basis/ actions regarding non promotion. The information sought by you vide Para 21 & 22 of your application does not serve any public interest as given in Para 8 (j) of the said Act. Promotion of officers is being issued by IHQ of MoD (Army) and not by the HQ commands. Information regarding the same may please by sought from the IHQ of MoD (Army)."
4He then received a reply also from Col. Pradip Bisht, HQ of MOD (Army) of 29.8.08, as follows:
"Reply to Query 32. Officially listed duties of MI can not be revealed as the information is classified and has a bearing on national security interests. The information is, therefore, exempt from disclosure under Section 8 (1) (a) of RTI Act, 2005.
Reply to Query 41. The requisite information as follows:-
(a) You were empanelled for promotion to the rank of Brig vide MS Branch Order No. A/47-54/2SB/Arty/MS(X) dated 22nd March 2007.
(b) You were posted in your turn to HQ 7 Arty Bde with local rank of Brig vide MS Branch letter No. 388838/MS (Brigs)/71 dated 25th May 2007, subject to being in acceptable medical category and clear from DV angle.
(c) You were in study leave up to 31st May 2007 you had requested for extension of study leave and change in posting to a field station to get SF accommodation. The request was accepted and the posting order was cancelled vide letter No. 388868/ MS (Brigs)/ 80 dated 15th June 2007.
(d) In the meantime ,communication was received from DV Dte that certain serious allegation were received against you requiring detailed investigations.
(e) A Court of Inquiry ordered under the agencies of HQ 41 Arty Div and based on the award of "Severe Displeasure (Recordable)" by the GOC-in-C, HQ Southern Command, a DIP was establish against you. You were intimated about the same vide MS (X) letter No. A/47017/AND/MS(X) dated 18th July 2008. You were also informed that you cannot be promoted to the acting rank of Brig on the basis of empanelment notified vide MS Branch Order A/47054/2SB/Arty/MS(X) dated 22nd March 2007 and you will be given a special review consideration by No. 2 SB.
(f) As regards perusal of the records and provisioning of copies of documents held with MS Branch, pertaining to your case, the same being confidential information of personal nature related to your promotion and Court of Inquiry having no public interest, is exempt from provisioning under Section 8 (1) (j) of RTI Act, 2005. Moreover, it may also be noted that 5 most of the information available with MS Branch has already been commu7nicated to you.
Replies to your balance queries will be provided to you on receipt from concerned office.' In his second appeal before us Col. Nargolkar has prayed as follows:
"Information was sought from two Army Authorities-IHQ of MoD (Army) and HQ southern Command.
Information by IHQ of MoD (Army). Information has been only partially given by PIO at IHQ of MoD (Army). CPIO at IHQ of MoD (Army) has advised me to exhaust appeal with PIO first, but waiting for rest of information sought from PIO at IHQ of Mod (Army) as and when received by him and by appealing to CPIO at IHQ of Mod (Army) will cause delay which I cannot afford under the Life and Liberty clause since it will seriously affect my further Career prospects since I am already 50 years and 7 months old and entry for next Career Course is limited to 52 years of age.
Information by CPIO HQ Southern Command. Appellate Authority at HQ Southern Command has totally rejected my request claiming exemptions.
Information as asked above vide my two requests dated 14th Feb 2008 and 23rd July 2008 as above be given to me since it has caused me gross trauma, affected my Family and professional life and stopped my promotion and career.' The appeal was heard on 4.12.2008 through videoconferencing. The following are present:
Appellant at CIC Studio, New Delhi.
Col. A.D. Nargolkar Respondents at CIC Studio, New Delhi.
Brig. P. Chakraborty, CPIO Col. A. K. Vyas, Dir. RTI Col. B. S. Raju, Col. - MS Legal Maj. M. Gahlot, GSO -1 (Legal) Respondent at NIC Studio, Pune Col. Bishnoi, Representing Southern Command 6 Col. A. K. Vyas, Director (RTI) submitted that in follow up to their response at Para 5 of the letter of 29.8.08, they have received a response from DV Directorate stating that they do not conduct discreet enquiries. Col. B.S.Raju MS (Legal) further elucidated that there is a method of preliminary enquiry before it is possible to institute a full Court of Enquiry. We have received a letter of 7.11.08 from HQ Southern Command Pune, in which Col. Arun Sareen PIO submitted parawise comments as under:
"(a) Para 1 to 3: The contents at Para 1 and 2 are a matter of records and admitted to the extent of record. The contents of Para 3 relates to personal details of the appellant.
(b) Para 4: It is submitted that applicant's First application No. CIC/WB/C/2008/00735 dated 14th February 2008 was not received by PIO, HQ Southern Command, since not forwarded to or addressed to the PIO by the applicant. With regard to provision of Court of Inquiry proceedings, the Hon'ble Supreme Court in Maj. Gen IJ Kumar V/s UOI (1997 SC 383) has ruled that there is no provision for supplying the accused with a copy of the report of Court of Inquiry.
(c) It is emphasised that a copy of Court of Inquiry proceedings was provided to complainant at the time of forwarding of Show Cause Notice bearing No. D/2405020/314/DV dated 07th March 2008.
(d) In compliance of the Hon'ble Mumbai High Court order, the findings of the Court of Inquiry have already been forwarded to the applicant and the same were
(e) Para 5 (a). In reply to Para 5, it is submitted that the accused vide his application dated 23rd July 2008 had sought the information cited in the instant Para 5. With regard to the discreet Inquiry by Military Intelligence, it is submitted that the same is related to the identity of source of Information for law enforcement or security purpose which is recognised under Sec 8 (g) of the RTI Act. The conduct of members of Armed Forces impinging on moral turpitude and security is reported in confidence to the Commanders, by Military Intelligence who can thus take appropriate preventive and corrective measures. The same does not form part of any formal investigation. Accordingly, the requested information was given in confidence to the competent military authority for law enforcement and security purpose. The aforesaid 7 information was denied to the applicant vide this HQ letter No B/2401006/1/RTI dated 26th August 2008, since it relates to personal information, the disclosure of which has no relationship to any public activity or interest. The said copy is found enclosed as Appendix 'L' in his Second Appeal addressed to the CIC.
(f) Para 5 (b). At the o7utset, it is emphasised that the complainant has no right what so ever to peruse various files of IHQ of MoD (Army) (Military Secretary Branch/ Discipline and Vigilance Branch) on a personal matter, which has no relation to any public activity. In any case, the same has been amply clarified to the complainant vide IHQ of MoD (Army) letter No. A/810027/RTI dated 29th August 2008 which is found enclosed as Appendix 'M' in his second appeal addressed to the CIC.
(g) Para 8 (c ). It is submitted that the correspondence exchanged between the complainant and the Army authorities are a matter of record. It is, however, denied that any humiliation was intended or caused by the Army authorities who were merely trying to conclude the proceedings of Court of Inquiry.
(j) Para 6,7,8 and 9. Contents of Para 6 and another Para numbered as Para 5 are matters of record and admitted to that extent.
(k) Para 10 to 13. The complainant is not entitled to invoke the life & liberty clause under article 21 and under provision 7 (i) of RTI Act 2005 as the matter is purely of administrative nature. The same has been clarified to the applicant by IHQ of MoD (Army) vide their letter No. A/810027/RTI/2696 dated 29th July 2008 which is found enclosed as Appendix 'F' in his Second Appeal addressed to the CIC. The complainant has no case what so ever and the PIO HQ Southern Command has rightly rejected the applications of complainant under Sec 8 (g) of RTI Act, 2005.
(l) Para 14 to 22. It is a matter of records and admitted to that extent.
(m) Prayer Clause. In fact, it may be noted that the applicant is trying to mislead the organisation by indulging in multiple and infructuous correspondence, wherein the officer has been making certain objectionable comments/allegations 8 against the authorities/ agencies with reference to his non promotion and self perceived humiliation. No comments could be offered there upon by the PIO for obvious reasons.
The PIO is obliged to seek information and provide information or deny information based on the requests made in any particular RTI Application and not to offer comments, analysis or interpretation on various decisions of the authorities or personal perception of the individual.
Appellant Col. Nargolkar submitted that his request with reference to Military Intelligence is specifically regarding authorization of Military Intelligence to investigate personal matters concerning officers and is not a general question on the jurisdiction of Military Intelligence.
DECISION NOTICE We agree that such cases that concern promotion and transfer or matters of human resource management and action in themselves do not constitute matters concerning "life & liberty", so that they will invoke the proviso to sec. 7(1) of the RTI Act. However, the RTI Application has not been answered at the level of PIO Southern Command but in the first instance at the level of first appellate authority. On the other hand the information sought had also been partly responded to by the CPIO HQ of MoD (Army) on 29.8.08 and no first appeal has been taken recourse to.
One question concerning the allegation of 'severe humiliation' of appellant refers directly only to Southern Command. In that case although humiliation has been alleged, Col. Bishnoi appearing on behalf of Southern Command has stated that no such humiliation was intended. Nor is there any record of any deliberate intention to so humiliate. We read out the definition of "right to information" u/s 2(j) of the RTI Act 2005. Under this Section such rights extend to all information "held by or under the control of the public authority". In this case since there is no record of intended humiliation, we cannot hold the CPIO in violation of the RTI 9 Act, though this fact should have mentioned in the very first response to applicant Col. Nargolkar. This issue is, therefore, dismissed.
On the remaining issues the bulk of the information is held by Army HQ, only to be supplemented with such information as in the case of file notings in Southern Command. On file notings, the decision of this Commission is clear. In CIC/OK/A/2006/00154 Pyare Lal vs. Ministry of Railways, dated 29.1.2007, in which we have held as follows.
"While the Act of 2005 incorporates other exemptions provided for in section 8 and 9 of the Act of 2002, it has not incorporated any such provision which will exclude the "file notings" from disclosure. Contrary to what has been submitted before us by the DOPT, it appears that the Parliament, in fact, intended that the "file notings"
are no more exempted and, as such, these are to be made available to the people. The reason for deletion of these specific words from the draft of the Act as mentioned by ASG in his arguments is more likely to be because the definitions cited above are clear and comprehensive on the subject and inclusion of the words would be rendered redundant as pointed out by Information Commissioner Prof. MM Ansari during the hearing. Attention here is drawn to the definition of the word 'file' as contained in the 'Manual of Office Procedure' of the DoPT. As will be seen, Section 27 of Chapter II: 'Definitions', clearly states, 'File means a collection of papers on a specific subject matter assigned a file number and consisting of one or more of the following parts:
(a) Correspondence
(b) Notes
(c) Appendix to Correspondence
(d) Appendix to Notes' This would imply that 'notings' are an inextricable part of a record as defined u/s 2(f) and further defined u/s 2(i)(a) of the Act unless it had been specifically exempted. Without that, by excluding 'notings' from a file, the DoPT would be going against their own Manual and established procedure mandated by them. This would also mean that if, as the Learned Counsel insists, 'notings' are not to be a part of the file, then first an amendment would have had to be carried out on the definition of a file in the DoPT's own manual.
28. Thus, from whichever angle the provisions of the Right to Information Act are looked into, "file noting" cannot be held to be excluded unless they come in conflict with public interest as 10 aforesaid or are excluded under any of the provisions of the RTI Act, 2005. We therefore see no reason to disagree with the Decisions on the subject pronounced thus far by this Commission. File noting is to be made available to applicants under the Right to Information Act unless they come in conflict with public interest including preservation of confidentiality of sensitive information and are therefore excluded under any of the provisions of the Act.
The issue is decided accordingly."
However, taking the application as a whole and whereas appellant Col. Nargolkar has not thus far availed of recourse to first appeal u/s 19(1), before the Provost Marshal, while the first appellate authority in his letter of 26.8.'08 has also advised Col Nargolkar that, "Information regarding the same may please by st sought from the IHQ of MoD (Army," and whereas the 1 appellate authority has not addressed the questions of appellant, which are of direct concern to his public authority and whereas appellant has pleaded no ground for making a direct complaint to us u/s 18, or apprehension of malafide on the part of the Department, the Commission has decided to remand this appeal to first Appellate Authority, Provost Marshal Adjutant General's Branch, Integrated Headquarter of Ministry of Defence (Army), DHQ PO, New Delhi-110011, who is directed to dispose of the appeal within 15 working days from the date of receipt of this decision, under intimation to Shri PK Shreyaskar, Jt Registrar, Central Information Commission. If not satisfied with the information so provided, nd appellant Col. A.D. Nargolkar will be free to move a fresh 2 appeal before us as per Sec 19 (3) Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 4.12.2008 11 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 Shreyaskar) Joint Registrar 4.12.2008 12