Central Information Commission
Sandeep Kumar vs Department Of Revenue on 4 December, 2017
CENTRAL INFORMATION COMMISSION
Room No. 305, 3rd Floor, CIC Bhavan, Baba Gangnath Marg, Munirka,
New Delhi-110067, website:cic.gov.in
Appeal No.:-CIC/DOREV/A/2017/120388-BJ
Appellant : Mr. Sandeep Kumar,
Respondent : The CPIO & Under Secretary (V&L)-I,
Ministry of Finance, Department of Revenue,
New Delhi.
Date of Hearing : 30.11.2017
Date of Decision : 04.12.2017
Date of filing of RTI application 04.02.2017
CPIO's response 16.02.2017
Date of filing the First Appeal 21.02.2017
First Appellate Authority's response 17.03.2017
Date of diarised receipt of second appeal by the Commission 27.03.2017
ORDER
FACTS:
The Appellant vide his RTI application sought information on 03 points regarding the date of conviction if one Shri. Arun Kumar Gurjar, IRS in the matter of CBI v. Arun Kumar Gurjar, whether the said officer was placed under suspension or had been reinstated and if reinstated, the date of reinstatement and the present place of posting and designation.
The CPIO vide its letter dated 16.02.2017 denied disclosure of information u/s 8(1)(j) of the RTI Act,2005and cited the decision of the Hon'ble Supreme Court in Girish Ramchandra Deshpande vs. Central Information Commission & ors. SLP(C) No. 27734 of 2012 dated 03/10/2012. Dissatisfied by the reply of the CPIO, the Appellant approached the FAA. The FAA vide its order dated 17.03.2017 while upholding the response of the CPIO, provided information pertaining to the present posting of the concerned officer.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Sandeep Kumar;
Respondent: Mr. Soumendu Kumar Dash, US (V&L) and Mr. M. K. Vijh, ASO;
The Appellant reiterated the contents of his RTI application and stated that the information had been wrongly denied to him by the CPIO/FAA. It was further explained that the information sought by him pertained to the Government official who had been convicted by the Sessions Court on corruption charges and still had been reinstated by the Respondent Public Authority without having the authoritative protection of Article 311 of the Indian Constitution and the established public policy. He made strong objection against the denial of the information sought in the instant matter which involved larger public interest and for misquoting the decision of the Hon'ble Supreme Court in Girish Ramchandra Deshpande vs. Central Information Commission & ors. SLP(C) No. 27734 of 2012 Page 1 of 6 dated 03/10/2012 in the present matter. In its reply, the Respondent submitted that part information regarding the present posting of the concerned officer had already been provided by the FAA in its order. However, with respect to other queries in the RTI Application, the Respondent reiterated the response of the CPIO/FAA and explained that such information was personal in nature and could not be disclosed u/s 8(1)(j) of the RTI Act,2005.
The Appellant contested the submission of the Respondent in this regard and stated that only vague information regarding the present posting had been furnished to him and that the information sought could not be denied by taking the exemption of Section 8(1)(j) of the RTI Act,2005 since no personal information of the concerned officer was sought by him. With respect to the issue of larger public interest, it was clarified that the matter pertained to the criminal conviction of the public officer and even the proviso to Section 8(1)(j) states that such "information that cannot be denied to the Parliament or State Legislature shall not be denied to any person" under the RTI Act, 2005. He further articulated over the letter and spirit of the RTI Act, 2005 and the bonafide public interest involved in disclosure of such information. He further referred to Section 24 of the RTI Act, 2005 wherein even the exempted organisations under the RTI Act, 2005 have to provide information in the matters relating to allegations of corruption and human rights violation and therefore the information sought by him should also be provided on the same lines. Concluding his submission before the Commission, a prayer was made for imposition of penalty on the CPIO for malafidely denying the information sought by him.
The Commission inquired from the Respondent regarding the reinstatement of the concerned officer whereby it was replied by the Respondent that though the officer was convicted by the lower Court but an Appeal had been filed by him in the High Court but no stay order had been granted. Moreover, all his reinstatement and posting had been made only as per the orders and instructions of the Competent Authority in the Government and that there was no malafide on the part of the CPIO/FAA for causing obstruction to information.
Hearing both the parties and on perusal of records, the Commission noted that though the Appellant made several allegations regarding the suspicious re- instatement of the concerned public officer, the Appellant did not produce any documentary evidence to substantiate his contention and to justify the larger public interest involved in the matter.
In this context, a reference could be drawn to the decision of the Hon'ble Supreme Court of India in Girish Ramchandra Deshpande vs. Central Information Commission & ors. SLP(C) No. 27734 of 2012 dated 03/10/2012 wherein it was held as under:
"13......The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of Page 2 of 6 such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right."
Moreover, the Hon'ble Supreme Court of India in the matter of of Canara Bank Rep. by its Deputy Gen. Manager v. C.S. Shyam, Civil Appeal No. 22 of 2009 dated 31.08.2017 had held as under:
"5) The information was sought on 15 parameters with regard to various aspects of transfers of clerical staff and staff of the Bank with regard to individual employees. This information was in relation to the personal details of individual employee such as the date of his/her joining, designation, details of promotion earned, date of his/her joining to the Branch where he/she is posted, the authorities who issued the transfer orders etc. etc
11) Having heard the learned counsel for the appellant and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned order and dismiss the application submitted by the 1st respondent under Section 6 of the Act.
12) In our considered opinion, the issue involved herein remains no more res integra and stands settled by two decisions of this Court in Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794, 5 it may not be necessary to re-examine any legal issue urged in this appeal.
14) In our considered opinion, the aforementioned principle of law applies to the facts of this case on all force. It is for the reasons that, firstly, the information sought by respondent No.1 of individual employees working in the Bank was personal in nature; secondly, it was exempted from being disclosed under Section 8(j) of the Act and lastly, neither respondent No.1 disclosed any public interest much less larger public interest involved in seeking such information of the individual employee and nor any finding was recorded by the Central Information Commission and the High Court as to the involvement of any larger public interest in supplying such information to respondent No.1."
The Hon'ble High Court of Delhi in the case of Union Public Service Commission v. Dr. Mahesh Mangalat (Date of Decision: 17th March, 2015) (W.P.(C) No. 7431/2011) had held:-
"18. Prior to the enactment of the RTI Act, access to any information pertaining to public authorities was correlated to the locus standi of the requestor. In other words, it was necessary for the information-seeker to show why he/she wanted the information before a decision could be made to give or not to give the information sought by him. With the enactment of the RTI Act this requirement has been changed drastically. The present Act abolishes the concept of locus standi as under section 6(2) of the RTI Act no reasons need to be given for seeking information. However, this restriction on disclosure of reasons cannot be misconstrued to mean that any information pertaining to a public authority or its employees is public information.Page 3 of 6
19. It is a settled law that for seeking personal information regarding any employee of the public authority the applicant must disclose a „sustainable public interest‟. Even Section 8(1) (j) of the RTI Act was enacted to ensure that all information furnished to public authorities including personal information is not given free access to. As per this Section unless the CPIO or the State PIO or the appellate authority, as the case may be, is satisfied that the larger public interest justifies, the disclosure of any such information that invades the privacy of an individual is not permissible.
The Commission also relied on the decision of the Hon'ble Supreme Court of India in Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 wherein in the context of exemption under Section 8 (1) (j) of the RTI Act, 2005, the Court had held that exemption provided under Section 8 of the Act is the rule and only in exceptional circumstances of larger public interest the information would be disclosed. The relevant observations are mentioned as under:
"21. ...... Another very significant provision of the Act is Section 8(1)(j). In terms of this provision, information which relates to personal information, the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual would fall within the exempted category, unless the authority concerned is satisfied that larger public interest justifies the disclosure of such information. It is, therefore, to be understood clearly that it is a statutory exemption which must operate as a rule and only in exceptional cases would disclosure be permitted, that too, for reasons to be recorded demonstrating satisfaction to the test of larger public interest. It will not be in consonance with the spirit of these provisions, if in a mechanical manner, directions are passed by the appropriate authority to disclose information which may be protected in terms of the above provisions. All information which has come to the notice of or on record of a person holding fiduciary relationship with another and but for such capacity, such information would not have been provided to that authority, would normally need to be protected and would not be open to disclosure keeping the higher standards of integrity and confidentiality of such relationship. Such exemption would be available to such authority or department.
22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh [AIR 1952 SC 252] ). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)].
23. The satisfaction has to be arrived at by the authorities objectively and the consequences of such disclosure have to be weighed with regard to the circumstances of a given case. The decision has to be based on objective satisfaction recorded for ensuring that larger public interest outweighs unwarranted invasion of privacy or other factors stated in the provision."
With regard to the imposition of penalty on the CPIO/PIO under Section 20 of the RTI Act, 2005, the Commission took note of the ruling of Hon'ble Delhi High Court in W.P.(C) 11271/2009 Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr. (delivered on: 01.06.2012) wherein it was held:
Page 4 of 6" 61. Even if it were to be assumed for the sake of argument, that the view taken by the learned Central Information Commissioner in the impugned order was correct, and that the PIOs were obliged to provide the information, which was otherwise retrievable by the querist by resort to Section 610 of the Companies Act, it could not be said that the information had been withheld malafide or deliberately without any reasonable cause. It can happen that the PIO may genuinely and bonafidely entertain the belief and hold the view that the information sought by the querist cannot be provided for one or the other reasons. Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a showcause notice under Section 20 of the RTI Act and the imposition of penalty. The legislature has cautiously provided that only in cases of malafides or unreasonable conduct, i.e., where the PIO, without reasonable cause refuses to receive the application, or provide the information, or knowingly gives incorrect, incomplete or misleading information or destroys the information, that the personal penalty on the PIO can be imposed. This was certainly not one such case. If the CIC starts imposing penalty on the PIOs in every other case, without any justification, it would instill a sense of constant apprehension in those functioning as PIOs in the public authorities, and would put undue pressure on them. They would not be able to ful fill their statutory duties under the RTI Act with an independent mind and with objectivity. Such consequences would not auger well for the future development and growth of the regime that the RTI Act seeks to bring in, and may lead to skewed and imbalanced decisions by the PIOs Appellate Authorities and the CIC. It may even lead to unreasonable and absurd orders and bring the institutions created by the RTI Act in disrepute."
Similarly, the following observation of the Hon'ble Delhi High Court in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 are pertinent in this matter:
"17. This Court takes a serious note of the two year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought. However, the Petitioner has not been able to demonstrate that they malafidely denied the information sought. Therefore, a direction to the Central Information Commission to initiate action under Section 20 of the Act, cannot be issued."
Furthermore, the High Court of Delhi in the decision of Col. Rajendra Singh v. Central Information Commission and Anr. WP (C) 5469 of 2008 dated 20.03.2009 had held as under:
"Section 20, no doubt empowers the CIC to take penal action and direct payment of such compensation or penalty as is warranted. Yet the Commission has to be satisfied that the delay occurred was without reasonable cause or the request was denied malafidely.
......The preceding discussion shows that at least in the opinion of this Court, there are no allegations to establish that the information was withheld malafide or unduly delayed so as to lead to an inference that petitioner was responsible for unreasonably withholding it."Page 5 of 6
The Appellant could not contest the submission of the Respondent or substantiate his claims further regarding malafide denial of information by the respondent or for withholding it without any reasonable cause.
DECISION Keeping in view the facts of the case and submissions made by both the parties, it is evident that suitable response had been provided by the CPIO/FAA. No further intervention of the Commission is warranted in this matter. The Appeal stands disposed accordingly.
(Bimal Julka) Information Commissioner Authenticated True Copy:
(K.L.Das) Deputy Registrar Page 6 of 6