Central Information Commission
Sohan Lal vs Controller General Of Defence Accounts ... on 19 February, 2021
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सच ु ना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मु नरका, नई द ल - 110067
Munirka, New Delhi-110067
File no.: - CIC/CGDAC/A/2019/602991+ Ors
In the matter of:
Sohan Lal
... Appellant
VS
ACDA & CPIO,
Office of the PCDA(AF),
107, Rajpur Road, Dehradun - 248001
...Respondent
Date of Hearing : 18/02/2021
Date of Order : 18/02/2021
File Nos. RTI application CPIO First Appeal FAA's Second appeal
filed on replied on filed on Order on filed on
602991 30/07/2018 04/09/2018 05/10/2018 13/11/2018 15/02/2019
603007 30/07/2018 04/09/2018 04/10/2018 13/11/2018 15/02/2019
603214 10/10/2018 29/10/2018 28/11/2018 21/12/2018 19/02/2019
603120 29/08/2018 24/09/2018 15/10/2018 13/11/2018 18/02/2019
603123 16/08/2018 04/09/2018 06/10/2018 13/11/2018 18/02/2019
648540 08/03/2019 01/04/2019 30/04/2019 20/05/2019 19/08/2019
648544 13/03/2019 01/04/2019 30/04/2019 20/05/2019 19/08/2019
648561 13/03/2019 01/04/2019 30/04/2019 20/05/2019 19/08/2019
654898 02/05/2019 30/05/2019 30/06/2019 30/07/2019 22/10/2019
Note: The above listed cases of the appellant cover similar issues and the arguments advanced by both the parties during the hearing were on the same lines for all the cases. Hence, for the sake of brevity, all the cases were clubbed and adjudicated by a common order. The hearing too was conducted in a similar fashion 1 The following were present:
Appellant: Present over intra VC Respondent: Shri Sajeev Kumar, ACDA & CPIO, present over VC Information Sought:
File No. CIC/CGDAC/A/2019/602991 The Appellant has sought the following information:
1. The Appellant had worked as LAO (AF) at Rajokri. On 15/11/2017, Smt. Pragati Tripathi, AAO working under the appellant, submitted to him a back dated draft showing date of submission as 11/09/2017 on the subject of "50% Revenue Generated from Shopping Complex not deposited in Govt Treasury".
After perusing the draft, the following remarks were given by the appellant:
a) Why was the back dated draft for SOC of Obj No 1 letter dt 07/08/2017 been put up with delay of more than three months;
b) Why had the SOC not been put up for his perusal.
c) Re-draft as briefed.
1.1. With reference to Para 1)(a)(b)(c) above, the appellant has sought the following information:
(i) Provide a copy of the re-drafted reply to 54 ASP on the subject.
(ii) Provide copies of documents vide which reasons regarding submitting back dated draft after more than 3 months delay, were apprised to his successor.
(iii) And other related information.
2. While functioning as LAO (AF) at Rajkori, on 15/11/2017, Smt. Pragati Tripathi, AAO working under him, submitted, a back dated draft showing date of submission as 09/2017 on the following subject:
"Audit Objection no 3(a&b) for HYE 4-9/13-provision of medicine through ECHS for Air Veterans"
The draft was approved by him on 15/11/2017. after perusing the draft, the following remarks were given by him on the draft:
"Draft put on 15/11/2017. Explain
(a) Why has the back dated draft for SOC of Obj No. 3. Letter dt. 08/08/2017 been put up with delay of more than 3 months.
(b) Why had the SOC not been put up for his perusal."
2.1. With reference to Para 2)(a)&(b) above, the appellant has sought the following information:
2(i) Provide a copy of the drafted reply to 54 ASP on the subject "Audit Objection No 3" mentioned above.
(ii) Provide copies of documents, vide which reasons regarding submitting back dated draft for SOC 3 (a&b), for more than three months delay, were apprised to his successor.
3. And other related information.
File No. CIC/CGDAC/A/2019/603007
1.While functioning as LAO (AF) at Rajokri, on 29/11/2017, Smt. Pragati Tripathi, AAO working under him submitted a back dated draft addressed to "S Accts O, 54 ASP AF, Gurgaon" showing date of submission as 22/08/2017 from File no AF/RAJ/54 ASP/04/15-09/15/Obj on the following subject:-
"Re-audit Remarks for the HYE 04/15-09/15"
The draft (for Sl. No. 04 to 08) was approved by him on 08/12/2017. After perusing the draft, the following remarks were given by him on the draft:-
(a) As to why the back dated DFA for re-audit remarks of objections had been put up with delay of such a long period.
(b) As to why the letter of Re-audit remarks had not been put up for his perusal.
(c ) Re-draft as briefed (S.No.1)
(d) Re-draft as briefed (S.No.2)
(e) Re-draft as briefed (S.No.3)
2. With reference Para 1(a) to (e) above, the appellant has sought the following information:
(i) Provide copies of documents, vide which reasons regarding submitting back dated draft for Re-audit remarks, in respect of total eight Audit Objections, for the HYE 04/15 to 09/15, were apprised to his successor in compliance of his remarks
(ii) Provide information about the date on which fair copy of the subject draft with modifications was signed and issued by his successor.
(iii) And other related information.
File No. CIC/CGDAC/A/2019/603214 The appellant has sought the following information:
1. In Para 1 of the PCDA (AF) Dehradun letter No. AN-I/305/Disp/PT dated 05/07/2018, it has been intimated to CGDA that "It is a factual complaint.
Based on the geniuses of the complaint further course of action in the matter 3 has been taken by this office". In this regard, the appellant has sought the following information:
--Provide a copy of the authority from the CCS (CC&A) Rules, 1965, DAD Manual or any instruction issued by the GOI under which a fax complaint not followed/supported with an ink signed copy is to be treated as "factual complaint" during the course of disciplinary action.
2. In para 2 of the PCDA (AF) Dehradun letter No. AN-I/305/Disp/PT dated 05/07/2018 it has been intimated to CGDA that "he was denied opportunity to inspect and ascertain the veracity of the relevant original documents, is baseless.....". In this connection, the appellant has sought the following information:
--(a) Provide information that an ink signed copy of the complaint, being the original copy of the complaint dt 13/11/2017, was held with the PCDA(AF), Dehradun and the same was provided to the undersigned during the course of Inquiry.
--(b) Provide an attested copy of the original complaint dt. 13/11/2017 from Pragati Tripathy.
3. In para 2(i)(b) of the PCDA (AF) Dehradun letter No AN-I/305/Disp/PT dated 05/07/2017, it has been intimated to CGDA that "the contention of the officer that the telephone number of sender mentioned on the fax copy was of PCDA(AF), Dehradun is false and misleading and therefore denied. The telephone No. of this office is mentioned on representation dated 13/11/2017 is automatically printed whenever any fax is received in this office". In this connection, the appellant has sought the following information:
--Provide the certified copies of all fax messages received from the telephone no. 0135-2741573 during the last one month prior to 15 hours from 15/11/2017. If no fax has been received during the said period, the fax messages received in the preceding two months from the date of 15/11/2017 prior to 15 hours be provided.
4. And other related information.
File no.: CIC/CGDAC/A/2019/603120 The appellant has sought the following information with regard to a sexual harassment complaint made against him by Smt. Pragati Tripathi, AAO:
1. Copy of the Pt-II Office order of the year 2017-18, according to which Smt. Kavita Sharma, IDAS, Dy. CDA was nominated as Chairperson of the Internal Committee on Sexual Harassment of PCDA(AF), Dehradun along 4 with copies of all noting on file relating to her approval by the competent authority.
2. Complaint dated 13/11/2017 from Smt. Pragati Tripathi, AAO was received in the PCDA(AF), Dehradun on 15/11/2017 at about 15:14 hours. Provide the source from which the Chairperson of the Sexual Harassment Committee/PDCA(AF) Dehradun was in receipt of prior information about the complaint.
3. Provide complete details of communication i.e. e-mail id/FAX number/Telephone No./Whatsapp number, through which Chairperson of the Sexual Harassment Committee/PDCA(AF) Dehradun was in receipt of prior information about the complaint.
4. And other related information.
File no.: CIC/CGDAC/A/2019/603123 The appellant has sought the following information in connection with a sexual harassment complaint made against him by Smt. Pragati Tripathi, AAO:
5. As the incident mentioned by the complainant in Para 3(a) of her complaint is very vague, with a view to hold a judicious inquiry and to ascertain the facts, certain questions were enquired into by the members of the Internal Committee from Smt. Pragati Tripathi and the appellant on 13/12/2017 & 14/12/2017 during the course of inquiry. In this regard, the appellant has sought the following information:
i. Provide copy of the document/written statements and Daily Order Sheet in which Internal Committee recorded the statement of Smt. Pragati Tripati about the name of the Cinema Hall in which the so called film was allegedly programmed by the LAO(AF), Rajokri and the staff.
ii. Provide copy of the document/written statements and Daily Order Sheet in which Internal Committee recorded the statement of Smt. Pragati Tripati about the location of the Cinema Hall in which the so called film was allegedly progammed;
iii. And other related information.
6. As per Section 4(2)(c) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, one member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment will be nominated on the Committee. In this regard, the appellant has sought the following information:
5i. Name of the organization to which the NGO member is associated.
ii. Provide criteria considered by the PCDA(AF), Dehradun before appointing NGO member on the Committee; A copy of the connected documents may be provided.
iii. And other related information.
7. And other related information.
File no.: CIC/CGDAC/A/2019/648540 The appellant has sought the following information in connection with the complaint dated 11/12/2017 lodged by him against Smt. Pragati Tripathi, AAO, with the National Commission for Scheduled Caste with a copy endorsed to PCDA(AF), Dehradun:
1. Provide the investigation report of PCDA(AF), Dehradun on the investigation carried out by them together with its enclosures, supporting documents and written statements attached therewith, and also copies of all letters mentioned in the investigation report as reference or otherwise.
2. Provide copy of the terms and references of the investigation ordered by the PCDA(AF), Dehradun.
3. Copies of all correspondences made by or received in PCDA(AF), Dehradun, in this regard, with/from the CGDA office, National Commission for SC, LAO (AF), Rajokri, District Magistrate, Police or any other authority/office/organization of State or Central Government.
4. And other related information.
File no.: CIC/CGDAC/A/2019/648544 The appellant has stated that a preliminary inquiry was held on 30/11/2017 in the matter of complaint of sexual harassment, by Dy.CDA(AF) alone. No other member of the Internal Committee was present. However, the Inquiry Report dated 18/12/2017, served on the appellant, contains the signatures of the other five members of the Committee on para 2 of the Report. In this context, the appellant has sought the following information:
1. Copies of the Pt-II Office order(s) under which, the Temporary Duty move of the five members of the Committee including member from NGO, who have signed Para 2 of the Inquiry report dated 18/12/2017, was notified.6
2. Whether appropriate departmental action has been considered/ is being considered against the five members of the Internal Complaint Committee for signing false statement in para 2 of the Inquiry report dated 18/12/2017 thereby violating instructions contained in DOPT OM No. 11013/10/93-Estt(A), dated 06/10/1993, incorporated as Government of India decision No. 22 below ibid Rules and falsely implicating the appellant.
File no.: CIC/DODEF/A/2019/648561/CGDAC The appellant has stated that in the APAR for the year 2017-18 in respect of Smt. Pragati Tripathi, AAO, he had brought to the notice of the Accepting Officer, certain acts of indiscipline and omissions on the part to Smt. Tripathi through a secret note dated 29/08/2018. In the said context, the appellant has sought the following information:
1. Whether it is obligatory on the part of competent authority to get the acts of indiscipline and omissions investigated, if reported through Secret Note of the APAR.
2. What follow up action has been taken/initiated on the acts of indiscipline brought out to the notice of APAR Accepting Officer, who also happens to be disciplinary authority, vide his "Secret Note" to APAR.
3. And other related information.
File no.: CIC/IAIRF/A/2019/654898 The appellant has sought the following information:
1. Provide authority under which definition of a 'disciplinary case' has been given and which can be deemed as 'Ongoing'.
2. Provide authority under which definition of "Competent Authority" in relation to a disciplinary case, has been given.
3. Who is the 'Competent Authority' in PCDA (AF), Dehradun to initiate/institute and process a disciplinary case against an AO/SAO under CCS(CC&A), Rules, 1965 or any other rule/order/Government instructions applicable to the AOs/SAOs of the DAD.
4. And other related information.
Grounds for Second Appeal The CPIO has denied providing the desired information under Sec.8(1)(h) of the RTI Act.
7Submissions made by Appellant and Respondent during Hearing:
The appellant submitted that the CPIO had misinterpreted Section 8(1)(h) of the RTI Act as there was no investigation pending against him at the time of filing the RTIs and the information sought by him is a natural part of the Inquiry report and should be provided to him as he has to defend his disciplinary case.
The CPIO submitted that an appropriate reply was given to the appellant on 04.09.2018. He further submitted that on the basis of a preliminary enquiry, a report was submitted to the Headquarters on 23.03.2018 based on the report of the internal committee and since disciplinary action was being contemplated, therefore, the information could not be supplied to the appellant.
Observations:
From a perusal of the relevant case records, it is noted that the CPIO had denied the information u/s 8(1)(h) of the RTI Act while stating that the information sought is related to an ongoing disciplinary case and the competent authority is in the process of taking a decision. This reply is incomplete in the sense that even though the FAA had claimed exemption under Section 8 of the RTI Act but he failed to give any justification on its applicability. Further, the appellant was right in stating that at the time of the reply, no disciplinary proceeding had begun as the charge sheet and memo was issued to him on 22.05.2019 only. The respondent's attention is drawn to the provisions of Section 19 (5) of the RTI Act, 2005, where in an appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO.
Here it is pertinent to quote verbatim the recent observation made by the Hon'ble High Court of Delhi on 05.02.2021 in the matter of Amit Kumar Shrivastava Vs Central Information Commission, W.P(C) No. 3701/2018 "As noted above, the legal position as settled by this court is that cogent reasons have to be given by the public authority as to how and why the investigation or prosecution will get impaired or hampered by giving the information in question. In the impugned order, there is no attempt made whatsoever to show as to how giving the information sought for would hamper the investigation and the on-going disciplinary proceedings. The 8 impugned order concludes that a charge sheet has been filed in the criminal case by the CBI but in the disciplinary proceedings the matter is still pending. Based on this fact simplicitor the impugned order accepts the plea of the respondent and holds that the Section 8 (1) (h) is attracted and the respondents are justified in not giving information to the petitioner. No reasons are spelt out as to how the investigation or prosecution will be hampered.
19. Accordingly, in my opinion, the order has taken a stand which is contrary to the settled legal position by this court as noted above. I, accordingly, quash the impugned order of CIC and remand the matter back to CIC for consideration afresh in terms of the above noted legal position."
During the hearing, it was enquired from the CPIO as to what is the status of the disciplinary case which was pending against the appellant and in case it is still pending to explain as to how the on-going disciplinary proceedings would be hampered if the documents sought for by the appellant are disclosed, he only submitted that the disciplinary case is still pending. The Commission noted that it was only in the year 2019 that a charge-sheet was issued to the appellant. Therefore, the reply of the CPIO at the relevant time was not proper. It is further noted that even though the charge-sheet was issued on 22.05.2019 and the disciplinary proceedings against the appellant are still pending, however, as mentioned above, that in itself does not justify the applicability of Section 8(1)(h) of the RTI Act in a blanket manner for all the nine cases. Further, in the latest written submissions of the CPIO, the CPIO apart from claiming exemption u/s 8(1)(h) of the RTI Act had stated that on some points, the appellant had sought clarifications/explanations which involves creation of new information and in some RTI applications he had sought personal information of third parties which is exempted u/s 8(1)(j) of the RTI Act. The Commission noted that even if for the sake of argument, it is accepted that some of the information is covered u/s 8(1)(h) of the RTI Act and on some points, the appellant had sought third party information which is exempted from disclosure u/s 8(1)(j) of the RTI Act, however, the CPIO had clearly failed to provide such a point wise reply to the appellant. The CPIO is therefore directed to re-visit all the RTI applications and provide a categorical reply on each point raised by the appellant in each of his RTI applications. The CPIO should note that in the event of claiming any exemption under the RTI 9 Act, as per the above cited judgment he has to justify the applicability of that Section in reference to the documents sought by the appellant and not simply mention the section and sub-section.
Decision:
In view of the above, the CPIO is directed to consider all the RTI applications afresh and provide a point-wise reply to the appellant on all of the points raised by him and wherever the information can be disclosed, the same should be given free of cost to the appellant. This direction is to be complied with within a period of 15 days from the date of receipt of this order under intimation to the Commission.
The CPIO is also warned to remain careful while handling the RTI applications in future and to ensure that while claiming an exemption, he should be clear about its applicability at the time of giving a reply.
The nine appeals are disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना)
Information Commissioner (सच
ू ना आयु त)
Authenticated true copy
(अ भ मा णत स या पत त)
A.K. Assija (ऐ.के. असीजा)
Dy. Registrar (उप-पंजीयक)
011- 26182594 /
दनांक / Date
10
Annexure:
File Nos.
1. CIC/CGDAC/A/2019/602991
2. CIC/CGDAC/A/2019/603007
3. CIC/CGDAC/A/2019/603214
4. CIC/CGDAC/A/2019/603120
5. CIC/CGDAC/A/2019/603123
6. CIC/CGDAC/A/2019/648540
7. CIC/CGDAC/A/2019/648544
8. CIC/DODEF/A/2019/648561/CGDAC
9. CIC/IAIRF/A/2019/654898
11