Central Information Commission
Ramesh Chander vs Directorate General Income Tax ... on 21 August, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/DRITI/A/2022/154462
Ramesh Chander ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
DIRECTOR GENERAL OF INCOME
TAX (VIGILANCE), RTI CELL, 2ND
FLOOR, JLN STADIUM, NEW
DELHI- 110003 .... ितवादीगण /Respondent
Date of Hearing : 18/08/2023
Date of Decision : 18/08/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 27/07/2022
CPIO replied on : 29/08/2022
First appeal filed on : 09/09/2022
First Appellate Authority order : 11/10/2022
2nd Appeal/Complaint dated : 16/11/2022
1
Information sought:
The Appellant filed an RTI application dated 27.07.2022 seeking the following information:
"In the context of the disciplinary proceedings initiated in the case of the Applicant vide Charge Memorandum F.No.C-14011/33/2018-V&L, dated 21-06- 2018 it is informed that he had participated in the Inquiry before the Inquiring Authority (for short the 'IO' Shri H.B.S. Gill (IRS 1987). As per the Applicants understanding and as would also be apparent from the IO's Order Sheet the hearing got concluded on 13th of November, 2020 and that post conclusion of the hearing the IO has already submitted his Inquiry Report.
2. Since, the report has already been submitted it is requested that a copy of the same needs to be made available to the Applicant. To this very effect, the DoPT OM no. 11012/13/85- Estt(A) dated 26th June, 1989 has (para 3) mandated for the supply of a copy of the Inquiry Report to the Government Servant. In this very context further attention is drawn to the Supreme Court judgment dated 01- 10-1993 {Appeal (civil) 3056 of 1991} in the case of Managing Director ECIL, Hyderabad vs. B. Karunakar Etc. where it has been held as under;
"....Hence, it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the inquiry Officer's report before the disciplinary authority arrives at its conclusion with regard to the guilt or innocence of the employee with regard to the charges levelled against him."
"(iii) Since it is the right of the employee to, have the report to defend himself effectively and he would not know in advance whether the report is in his favour or against him.... Whether, therefore, the employee asks for the report or not, the report has to be furnished to him."
The CPIO furnished a reply to the appellant on 29.08.2022 stating as under:
"2.Vide above mentioned RTI applications, you have requested for the copy of the IO's Report which was submitted after conclusion of the hearing dated 13.11.2020.
3.As the information requested for, pertains to other custodian of records in this office, requisition has been made for furnishing such information in terms of section 5(4) of the RTI Act, 2005.
24.The custodian of records has informed that the proceedings in the matter have not attained finality even though the Charge Memorandum has been set aside on technical grounds by the Hon'ble High Court vide its order dated 13.05.2022. The Directorate has recommended for filing of the SLP in the matter.
5.In view of the above, the stage for supply of the IO Report, requested by the applicant, has not been reached since the DA is yet to take a call on whether the report is to be accepted or otherwise.
6.Reliance is also placed at W.P.(C ) 10694/2022 and CM APPL. 31059/2022 in the case of CPIO Vs Anuradha Mookerjee, Therefore, this information is covered under the provision of section 8(1)(h) of the RTI Act, 2005 and hence the same is being denied."
Being dissatisfied, the appellant filed a First Appeal dated 09.09.2022 "In connection with the aforesaid denial of information, it is respectfully submitted that it is atrocious, and it is unbecoming of a CPIO/Government servant as it is done without considering the facts and circumstances of the case and the relevant law and also the judgment of the Supreme court specifically referred to. CPIO has also failed to appreciate that clause (h) bars information only when it would impede the process of investigation whereas in the Appellant's case investigation is already over. The CPIO has failed to understand that even otherwise in terms of the Supreme court judgment and the relevant Rules the Inquiry Report is required to be furnished well before a decision to accept it or not is taken. Regarding reliance placed on "W.P.(C) 10694/2022 and CM Appl. 31059/2022 in the case of Anuradha Mookerjee" it is not understood what the CPIO is trying to convey more so when its contents/copies have neither been disclosed or supplied."
FAA's order dated 11.10.2022, upheld the reply of CPIO and observed as under:
"7.1 The appellant had sought copy of IO's report stating that Supreme Court judgement dated 01-10-1993{Appeal (civil) 3056 of 1991} in the case of Managing Director ECIL, Hyderabad v. B. Karunakar etc. and DoPT OM 11012/13/85-Estt(A) dated 26.06.1989 mandates supply of copy of Inquiry report before the acceptance of the report by the DA.
7.2 On perusal of the above-mentioned Supreme Court judgment it is noted that the Hon'ble Court held that to fulfil the constitutional requirement of affording a reasonable opportunity, it is necessary that in all cases where the 3 disciplinary authority is itself not the inquiry authority, a copy of the inquiry __- report shall be furnished to the accused Government servant to enable him to make his submissions in regard to the findings of the inquiry, before the disciplinary authority passes its order imposing the penalty.
In the instant case the charge memorandum has been set aside by the Hon'ble High Court vide its order dated 10.05.2022. In such a scenario, the stage for providing copy of the Inquiry Report to the Charged Officer as per the judgement of Hon'ble Supreme Court retied upon by the appellant has not been reached.
7.3 Further, it is to note that DoPT OM 11012/13/85-Estt(A) dated 26.06.21989 also specifies that the Disciplinary Authority (hereinafter referred to as DA), if it is different from the Inquiring authority before making a final order in the case, shall forward a copy of the inquiry report to the Government servant concerned. As in the present case, the DA has not even examined the Inquiry report let alone passing of final order. Therefore, the order passed by CPIO is as per DoPT OM as the stage for supply of Inquiry report has not been reached as per the established rules and procedures.
7.4 In support of the reasoning in para 7.3 above further reliance is placed on Rule 15(2) of the CCA Rules, 1965 which clearly provides for providing copy of Inquiry Report to the Charged officer after its examination by DA. The relevant part of the rule is reproduced below:
"(2) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinaiy authority is not the inquiring authority, a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant"
In the present case the Inquiry Report is yet to be examined by the DA because the Charge Memorandum has been set aside on technical grounds by the Hon'ble High Court vide its order dated 13.05.2022. The Directorate has recommended for filing of the SLP in the matter. Therefore, the stage at which Inquiry report is to be provided as per rule 15(2) has not been reached.
47.5 This is where the Hon'ble High Court order dated 18.07.2022 in W.P.(C) 10694/2022 and CM Appl.31059/2022 in the case of CPIO vs Anuradha Mookerjee applies to the present case. in Anuradha Mookerjee's case the Chargesheet was quashed by the Hon'ble CAT which formed the subject matter of challenge in W.P.(C) 6232/2020. Further, the 10 has submitted his report in her case which has still not been examined by the Disciplinary Authority in terms of Rule 15(1) of CCS(CCA) Rules, 1965 because of quashing of chargesheet by Hon'ble CAT. As can be seen from the facts, they apply similarly to the Appellant's case as Charge Memorandum in his case has also been set aside on technical grounds by the Hon'ble High Court and Inquiry Report in his case is still pending examination by the Disciplinary Authority in terms of Rule 15(1) of CCS(CCA) Rules, 1965 because of setting aside of Charge Memorandum.
7.6 The Hon'ble High Court in its order dated 18.07.2022 in W.P.(C) 10694/2022 and CM Appl.31059/2022 in the case of CPIO vs Anuradha Mookerjee held that:
Presently and till such time as the order of the Tribunal is ultimately set aside, the question of providing a copy the enquiry report would thus not arise,"
In the Appellant's case the stage of furnishing of Inquiry report will only be reached after the examination of Inquiry Report by the Disciplinary Authority under Rule 15(1) of the CCS(CCA) Rules, 1965, which will only be possible if the order of High Court setting aside the Charge Memorandum in the case of appellant is superseded.
7.7 Further, Appellant has contended that section 8(1)(h) bars information only when it would impede the process of investigation whereas in the Appellant's case investigation is already over. Here it is important to mention that, the investigation in case of Disciplinary Proceeding can be said to be complete only with the final levy of penalty or closure of proceedings by way of exoneration. Thus, completion of Disciplinary proceedings is attained only when final decision is taken by the Disciplinary Authority with regard to either imposition of penalty or exoneration. In the present case the Disciplinary proceedings have not attained finality as the Disciplinary authority is yet to take a final decision. Therefore, the denial of information under section 8(1)(h) of the RTI Act, 2005 by the CPIO is justified.5
7.8 In support of the reasoning in para 7.7 above reliance is placed on the decision of Hon'ble CIC in the case of Shri Manjit Singh vs Central Vigilance Commission (CIC/SB/A/2016/90043) dated 08/05/2017 wherein the Hon'ble CIC has taken in account the following decisions as well:
(i) CIC/AT/A/2007/00007
(ii)CIC/AT/A/2007/00010
(iii)CIC/AT/A/2007/00011
(iv)CIC/AT/A/2006/00039 Govind Jha v Army HQs
(v)CIC/AT/A/2007/00333P.K.Saha v. D.B. Jatonkar, General Manager(A&EE) xxx"
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal stating inter alia as under:
"Information concerning the supply of the IO's report sought by the Applicant was denied by the CPIO as a result of which first appeal was filed. Denial by the CPIO has been despite that in the like circumstances in the case of Anuradha Mukherjee (CIC/CCTEVA/2020/13125 decision dated 06-05-2022), the CIC had already taken a view and directed the CPIO to supply the IO's report. Without appreciating the implications post RTI Act, 2005, the First Appellate Authority (for short 'FAA'), Smt. Nidhi Singh, Addl. Director General (Vig) (Hqrs)-5, New Delhi declined to order the CPIO to supply the IO's report to the Applicant Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Not present.
Respondent: Sanjay Kumar Pandey, DDIT(Vig.) & CPIO present in person.
The CPIO relied on the arguments mentioned in his written submissions dated 16.08.2023 stating as under:
"5. In second appeal before the Hon'ble CIC, appellant has submitted that in the like circumstances in the case of Anuradha Mukherjee (CIC/CCTD/A/20 0/13125 decision dated 06.05.2022), the CIC had already taken a view and directed the CPIO to supply the IO's report. Appellant has further submitted that the denial of the information in terms of section 8(1)(h) of the RTI Act, 2005 is not possible without showing as to how disclosure would impede the process of investigation. Further, appellant has contradicted his statement in para 3.1 by 6 stating that he had submitted submission before FAA making out therein the case as to how his case is different and why Delhi High Court judgment in Anuradha Mookerjee's case does not come in the way of the CPIO in providing the information. The appellant has further submitted RTI Act, 2005 is a legislation which supersedes other laws.
6. Here, at the outset it is important to mention that Supreme Court judgement dated 01-10-1993(Appeal (civil) 3056 of 1991) in the case of Managing Director ECIL, Hyderabad v. B. Karunakar Etc. held that to fulfil the constitutional requirement of affording a reasonable opportunity, it is necessary that in all cases where the disciplinary authority is itself not the inquiry authority, a copy of the inquiry report be furnished to the accused Government servant to enable him to make his submissions in regard to the findings of the inquiry, before the disciplinary authority passes its order imposing the penalty. Further, DoPT OM 11012/13/85-Estt(A) dated 26.06.21989 also specify that the Disciplinary Authority, if it is different from the Inquiring authority before making a final order in the case, shall forward a copy of the inquiry report to the! Government servant concerned. As in the present case the DA has not even examined the Inquiry report let alone passing of final order at the time reply by CPIO, therefore; the order passed by CPIO was as per the DoPT OM as the stage for supply of Inquiry report has not been reached as per the established rules and procedures.
7. In support of the reasoning in para 6 above further reliance is placed on Rule 15(2) of the CCA Rules, 1965 which clearly provides for providing copy of Inquiry Report to the Charged officer after its examination by DA. The relevant part of the rule is reproduced below:
"(2) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant."
8. In the present case the Inquiry Report was yet to be finally examined by the DA on the date of reply by CPIO because the Charge Memorandum has been set aside on technical grounds by the Hon'ble High Court vide its order dated 13.05.2022. Therefore, the DA is not in a position to agree or disagree with the 7 findings of the 10 before examining the report. The Directorate has further filed SLP before the Hon'ble Apex Court against the High Court as on that date. Therefore, the stage at which Inquiry report is to be provided as per rule 15(2) has not been reached on the date of order by CPIO or the FAA.
9. This is where the Hon'ble High Court order dated 18.07.2022 in W.P.(C) 10694/2022 and CM App1.31059/2022 in the case of CPIO vs Anuradha Mookerjee applies to the present case. In Anuradha Mookerjee's case the Chargesheet was quashed by the Hon'ble CAT which formed the subject matter of challenge in W.P.(C) 6232/2020. Further, the 10 has submitted his report in her case which has still not been examined by the Disciplinary Authority in terms of Rule 15(1) of CCS(CCA) Rules, 1965 because of quashing of chargesheet by Hon'ble CAT. As can be seen from the facts that they apply similarly to the Appellant's case as Charge Memorandum in his case has been set aside on technical grounds by the Hon'ble High Court and Inquiry Report in his case is still pending examination by the Disciplinary Authority in terms of Rule 15(1) of CCS(CCA) Rules, 1965 because of setting aside of Charge Memorandum.
10. The Hon'ble High Court in W.P.(C) 10694/2022 and CM App1.3 059/2022 vide its order dated 18.07.2022 (Copy enclosed), in the case of CPIO vs Anuradha Mookerjee, did not sustain the Hon'ble CIC's decision in F.No. CIC/CCTD/A/2020/13125 dated 06.05.2022 and held the following: Presently and till such time as the order of the Tribunal is ultimately set aside, the question of providing a copy lie enquiry report would thus not arise. Additionally, the Tuft takes note of the submission of Mr. Hossain who contends that in terms of Rule 15(1) of the CCS(CCA) Rules, the stage for supply of that report had not reached since the Disciplinary Authority was yet to take a call on whether the report was to be accepted or the matter remitted for further enquiry".
11. In view of the reasoning provided above, in the Appellant's case the stage of furnishing of Inquiry report will only be re/ached after the examination of Inquiry Report by the Disciplinary Authority under Rule 15(1] of the CCS(CCA) Rules, 1965, which will only be possible if the order of High Court setting aside the Charge Memorandum in the case of Appellant's case is set aside or the case otherwise attains finality.
12. Further, Appellant has contended that the denial of the information in terms of 1 section 8(1)(h) of the RTI Act, 2005 by public authorities is not possible without showing as to how disclosure would impede the process of investigation is not correct. Here, it is important to mention that FAA has categorically mentioned in her order that it has been the consistent position of the Hon'ble Central Information Commission} that a disciplinary I 1 inquiry assumes the characteristics of an ongoing investigation and the material thereof cannot be disclosed under 8 section 8(1)(h) of the RTI Act. Further, the completion of Disciplinary proceedings is attained only when final decision is taken by the Disciplinary Authority with regard to either imposition of penalty or exoneration. In the present case, as even 10's report has not been examined by the DA, the Disciplinary proceedings have not attained finality. In support of this reasoning FAA placed reliance on the decision of Hon'ble CIC in the case of Shri Manjit Singh vs Central Vigilance Commission (CIC/SB/A/2016/90043) dated 08/05/2017. So, naturally the providing of copy of IOreport at that stage would have impeded the process.
13. Further, the simplistic approach or claim of the appellant that RTI Act, 2005 is a legislation which supercedes all other laws is also not correct. While examining this issue, the Hon'ble Apex Court in CHIEF INFORMATION COMMISSIONER VERSUS HIGH COURT OF GUJARAT AND ANOTHER in CIVIL APPEAL NO(S).1966-1967 OF 2020 (Arising out of SLP(C) No.5840 of 2015] vide its order dated 04.03.2020 held that "In the absence of inherent inconsistency between the provisions of the RTI Act and other law, overriding effect of RTI Act would not apply." Therefore, as CCS(CCA) Rules, 1965 rules have explicit provision to provide copy of IO report to the charged officer resorting to the RTI Act, 2005 for the same should be denied."
Decision:
The Commission has perused the averments of the Appellant on record and has also considered the detailed rebuttal of the CPIO in the matter. In the absence of the Appellant to plead his case or contest the CPIO's submissions during the hearing, the Commission observes that the CPIO has discharged the onus of justifying the denial of the information as per Section 19(5) of the RTI Act.
Having observed as above, no action is warranted in the matter.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) 9 Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 10