Central Information Commission
S K Maheshwari vs Reserve Bank Of India on 13 October, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/RBIND/A/2022/116748 +
CIC/RBIND/A/2022/116749
SK Maheshwari ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Reserve Bank of India
Bhartiya Reserva Bank Note Mudra (P) Ltd.
3&4, 1st Stage, 1st Phase, BTM Layout,
Bannerghatta Road
PB No. 2924, Bengaluru-560029 .... ितवादीगण /Respondent
Date of Hearing : 04/09/2023
Date of Decision : 09/10/2023
INFORMATION COMMISSIONER : Saroj Punhani
Note: The above referred appeal(s) have been clubbed for decision as these relate
to the same subject matter and contain identical contentions of both the parties.
Relevant facts emerging from appeal:
RTI application(s) filed on : 24/01/2022 & 24/12/2021
CPIO replied on : 17/02/2022 & 21/01/2022
First appeal filed on : 22/02/2022 & 24/01/2022
First Appellate Authority order : 23/03/2022 & 21/02/2022
2nd Appeal(s)/Complaint dated : 02/04/2022
1
File No : CIC/RBIND/A/2022/116748
Information sought:
The Appellant filed an RTI application dated 24.01.2022 seeking information as under:
"I hereby submit this request for Information under the RTI Act. I served as the Managing Director of BRBNMPL from 1 June, 2017 to 31" May, 2020. The information sought relates to my unpaid dues. This may be taken as applicant's interest in the information sought if it is required under the law. The company had earlier Informed me that this matter is under consideration of its Board. The company had also informed that CVC has sought some information from it, detalls have been furnished and that it has sought some clarification from RBI. The term 'the company used in this letter refers to BRBNMPL.
The company has, vide its letter BNM No. 1909/10.11.01(4)/2021-22 dated 21 January, 2022, denied the information sought in paras 1 to 20 and 24 of my RTI application dated 24th December, 2021 on identical ground, viz., "The information sought by the applicant can not be furnished since it falls under the ambit of section 8(1)(h) of the RTI Act, 2005 and would impede the process of Investigation."
Information sought in paras 1 to 15 of this letter relates to this 'investigation'. Information sought in paras 16 to 18 relates to the contents of the company's letter BNM No. 1370/04.10.01/2021-22 dated 8th November, 2021 addressed to M/s MSSV and Co.
c. Information required:
1. Does the term 'investigation' mean consideration of the matter by the company's Board"
2. Does the term 'investigation' mean the information sought by CVC from the company?
3. Does the term 'investigation' mean the details furnished by the company'
4. Does the term 'investigation' mean the clarification sought by the company from RBI.
5. Does the term 'investigation' mean the clarification received by the company from RBI.2
6. What is the subject matter of the investigation?
7. Am I named in the investigation as an accused (by whatever name called)'
8. Certified copy of the order of the competent authority ordering the investigation.
9. Certified copy/ copies of the document(s) relied upon by the competent authority while ordering the investigation.
10. Certified copy of the order of appointment of the investigation/ enquiry officer.
11. Certified copy of the order of appointment of the presenting officer.
12. Allegations/ charges/ irregularities being investigated/ enquired into.
13. Allegations levelled against me in the said investigation.
14. Certified copy/ copies of the show cause notice or charge sheet issued in connection with the investigation/ enquiry.
15. Has the investigation ended?
16. Certified copy of the Memorandum submitted to the Board for approval of my pay and perquisites.
17. Certified copy of the Board approval of my pay and perquisites.
18. Certified copy of the document where I have acknowledged my pay and perquisites approved by the company's Board."
The CPIO furnished a reply to the appellant on 17.02.2022 denying the information sought for at points 1-15 under Section 8(1)(h) of the RTI Act and for points 16-18, information was denied under Section 8(1)(e) of the RTI Act.
Being dissatisfied, the appellant filed a First Appeal dated 22.02.2022. FAA's order, dated 23.03.2022 concurred with the reply of the CPIO by observing inter alia as under:
3"I observe from the record that so far the appellant has filed 9 RTI applications and 9 Appeals and various complaint letters to the authority. The main contention of the appellant to which he repeatedly emphasizes is the issue of PLR and I observed from the record that the CPIO has been providing the information in answering to his queries in all his RTI applications. However, the appellant in order to redress his grievance has been filing repeated RTI applications and appeals.
6.1 understand that the indiscriminate and impractical demands under the RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counterproductive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non- productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquillity and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants Instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritizing "information furnishing", at the cost of their normal and regular duties."
7. In this connection I must mention that the Hon'ble Supreme Court in ICAI vs. Shaunak H. Satya, (2011) 8 SCC 781 has held as under:-
'39. We however agree that it is necessary to make a distinction in regard to information intended to bring transparency, to improve accountability and to reduce corruption, falling under Sections 4(1)(b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public Interests, which Include efficient operation of public authorities and the Government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources.'
8. I must quote that misuse of the RTI Act has to be appropriately dealt with, otherwise the public would lose faith and confidence in this "sunshine Act". A 4 beneficent Statute, when made a tool for mischief and abuse must be checked in accordance with law. The appellant may examine the aspect of misuse of this Act, which confers very Important and valuable rights upon a citizen.
9. I would also like to highlight that CVC issued circular dated 10.03.2017 to all the CVOS of various public-authorities about CIC-verdict dated 25.06.2014 in case 'Shri Ramesh Chand Jain vs DTC in which CVC has asked all its CVOS to bring to notice of CPIOs/Appellate Authorities of their organisations about the verdict. CVC had to issue such directions to CVOS only because of detection of large-scale misuse of RTI Act having been noted by it. The said CIC-verdict observed as under:
Even a single repetition of RTI application would demand the valuable time of the public authority, first appellate authority and if it also reaches second appeal, that of the Commission, which time could have been spent to hear another appeal or answer another application or perform other public duty.
Every repetition of RTI application which was earlier responded will be an obstruction to flow of information and defeats the purpose of the RTI Act."
There is a categorical finding that the appellant has been misusing the RTI Act, as is evident from the plethora of RTI applications and appeal filed by the appellant.
10. I would like to mention that the order of the Hon'ble supreme Court dated February 12, 2019 passed by the Supreme Court in Civil Appeal No. 1632/2019, which is an appeal arising from the orders passed by the Coordinate Bench of this Court in W.P.(C) 2272/2013 dated September 16, 2014 and the Division Bench in LPA 471/2015 dated August 17, 2015, wherein Information also includes copy of the note sheet for processing the decision to refer the said case to Anti-Corruption Branch of CBI for investigation. In the said case, the said information was denied to the petitioner Ashok Kumar Sharma.
5. The Supreme Court in its order dated February 12, 2019 has held as under:-
'4. The dispute remains about document Nos.1, 3 and 4 as they were not supplied considering the provisions of Section 8(i)(h) of the Right to Information Act which prohibits disclosure of information connected with ongoing investigations and prosecutions and it was opined that it was source information that has triggered the anti-corruption proceedings and nothing 5 should be done which affects the proceedings or which compromises the position of the sources of information. 5. In view of the aforesaid reasons employed by the Information Commissioner, we are of the opinion that there was justification in refusing to supply the aforesaid documents. However, as rightly pointed out by learned counsel for the appellant that during the course of trial, if the trial Court feels It appropriate and if a prayer is made, the documents may be called by Court in accordance with law.'
11.I further observe that the information sought by CVC from the company pertaining to the appellant and the correspondences made to the Board in the matter would definitely Impede the process of investigation and falls under the exemption clause of Section 8(1) (h) of the RTI Act. The correspondences of CVC with the Company pertaining to the appellant are part of internal investigation and not necessarily disclosable as these are indeed exempt from disclosure under Section 8 (1)(h) of RTI Act.
12. I observe that the CPIO had responded to the appellant within stipulated period and sent a point-wise reply based on available records and has provided the desired information in his reply letter dated February 17, 2022. As per Section 2(f) and (j) of the RTI Act, 2005, the CPIO is supposed to provide information which is held or under the control of the public authority. He is not supposed to create information to satisfy any assumption/presumption of the appellant.
13. The appellant has further submitted that the desired information has not been provided to him by the CPIO on his RTI application dated 24.01.2022. That the desired information at query no. 16 and 17 has wrongly been denied under section 8(1)(e) of the RTI Act, 2005.
14. On perusal of records, I observe that the information sought by the appellant is held by the public authority in its fiduciary capacity, the disclosure of which is exempted under section 8 (1) (e) of RTI Act 2005. That the same has already been informed by the CP10 vide reply letter of CPIO dated 17.02.2022. That the appellant has also failed to establish larger public interest in seeking such information.
15. In this context, I may refer to the Hon'ble Supreme Court decision in CBSE v. Aditya Bandhopadhyay (2011) 8 SCC 497 wherein it was held as under:6
22.'.... But the words "information available to a person in his fiduciary relationship' are used In section 81Xe) of RTI Act in its normal and well recognized sense, that is to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary - a trustee with reference to the beneficiary of the trust, a guardian with reference to a minor/physically/infirm/mentally challenged, a parent with reference to a child, a lawyer or a chartered accountant with reference to a client, a doctor or nurse with reference to a patient, an agent with reference to a principal, a partner with reference to another partner, a director of a company with reference to a share-holder, an executor with reference to a legatee, a receiver with reference to the parties to a lis, an employer with reference to the confidential information relating to the employee, and an employee with reference to business dealings/transaction of the employer.'
16. In the light of the above observations, I am of the opinion that the CPIO has rightly denied the requested information under relevant provisions of the RTI Act, 2005. Therefore, the reply provided by the CPIO vide his letter dated 17.02.2022 is in order and same is being upheld.
17. I also observe that under the provisions of the RTI Act, 2005, only such information as is available and existing and held by the public authority or is under control of the public authority can be provided. The PIO is not supposed to create information that is not a part of the record. He is also not required to interpret information or furnish replies to hypothetical questions under the provisions of the Act. Similarly, redressal of grievance, reasons for non- compliance of rules/contesting the actions of the public authority are outside the purview of the Act. Information as available in whatever form in the record can only be provided under the RTI Act.
18. I may also clarify to the appellant that the redressal of grievance does not fall within the ambit of the RTI Act rather it is up to the Appellant to approach the correct grievance redressal forum. The RTI Act is not the proper law for redressal of grievances/disputes and there are other appropriate forum(s) available for resolving such matters.
19. I therefore found that the CPIO is very clear and candid in providing the reply to the applicant in his reply letter dated February 17, 2022 addressing the queries raised by the appellant and therefore the contentions of the appellant that 7 the CPIO has wrongly denied Information in query si no. 1 to 15 under section 8(1)(h) and query sl no. 16 and 17 under 8 (1) (e) of the RTI Act, 2005 is not correct."
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
File No. CIC/RBIND/A/2022/116749 Information sought:
The Appellant filed an RTI application dated 24.12.2021 seeking information as under:-
"I hereby submit this request for information under the RTI Act. I served as the Managing Director of BRBNMPL from 1 June, 2017 to 31st May, 2020. The information sought relates to my unpaid dues. This may be taken as applicant's interest in the information sought if it is required under the law. The term 'the company used in this letter refers to BRBNMPL Information sought in paras 1 to 18 of this letter relates to the contents of the company's letter BNM No. C- 231/10.11.01(4)/2021-22 dated 2 December, 2021.
c. Information required:
1. What information has been sought by the CVC from the company?
2. What details have been furnished by the company and to whom?
3. Certified copy of the communication(s) received by the company from the CYC seeking information and the office note recorded thereon along with the competent authority's orders.
4. Certified Copy Of the communication(s) sent by the company where the information sought by the CVC has been furnished.
5. Do the company send any communication(s) to the CVC in response to which they sought the information? If yes, please provide certified copies of all such communication(s).
6. Was any inspection/ Investigation/ Scrutiny/ enquiry carried out by and/ or Lode in from the CVC into the matter (s) to which the information sought by CVC relates?8
If yes. Please provide a certified copy of the report/ findings/ document submitted by the Investigating officer/authority pursuant to the inspection/ investigation/ scrutiny/enquiry.
7. Certified copies of all communication(s) exchanged between the company and CVC regarding the matter to which the information sought by CVC relates.
8. Certified copy/ copies of the decision/ direction received by the company from CVC regarding the matter to which the information sought by CVC relates.
9. Certified copy/ copies of Memorandum/ Memoranda or any other document(s) submitted to the Board seeking approval to furnish the information sought by CVC.
10. Certified copy of the Board's approval to furnish the information sought by CVC.
11. Has the CVC sought any information specifically about me and/ or my unpaid dues? If yes, please inform what information has been sought and provided and provide certified copies of the relevant communication(s).
12. Did the company obtain any legal opinion(s) regarding the information sought by the CVC? If yes, please provide certified copies of the following documents: I (1) Communication(s) sent to the legal adviser(s)/ expert(s) seeking the opinion(s). (ii) Documents provided to the legal adviser(s)/ expert(s) in connection with the case.
(i) Communication(s) received from the legal adviser/ expert seeking clarification(s)/ further information/ company's views and replies sent to each.
(iv) Opinion(s) furnished by the legal adviser(s)/ expert(s).
(v) Action taken on each opinion.
(vi) Office note(s) recorded on each opinion along with orders of the competent authority.
13. What clarification has the company sought from RBI?9
14. Certified copy of the communication(s) sent to RBI seeking the clarification.
15. Certified copies of all communication(s) exchanged between the company and RBI regarding the matter to which the clarification sought from RBI relates.
16. Certified copy/ copies of the decision/ direction/ advice received from RBI regarding the matter to which the clarification sought from RBI relates.
17. Certified copy/ copies of Memorandum/ Memoranda or any other document(s) submitted to the Board seeking approval to seek clarification from RBI.
18. Certified copy/ copies of the Board's direction to seek clarification from RBI.
19. Has the company received instruction to withhold/ deny my dues from its Board, CVC, RBI or any other authority legally competent to issue such an instruction? If yes, please provide certified copy of the said instruction.
20. Has any official of the company passed any orders to withhold/ deny my dues?
If yes, please provide certified copy of the said orders.
21. Action taken on my letter dated 6 December, 2021 addressed to Managing Director and a certified copy of the office note recorded along with the competent authority's orders.
22. Action taken on my letter dated 22 December, 2021 addressed to Managing Director and a certified copy of the office note recorded along with the competent authority's orders.
23. Action taken on my letter dated 24" December, 2021 addressed to Managing Director and a certified copy of the office note recorded along with the competent authority's orders.
24. The company has informed me that the matter of my unpaid PLR and SPA dues is under consideration of the competent authority. The company has also informed that its Board is the competent authority in this case. Please provide certified copies of all documents submitted to the Board regarding this matter and the direction(s) received from the Board.
1025. Certified copy of the company's letter dated 8 November, 2021 (along with all its enclosures) sent to M/s MSSV & Co., Chartered Accountants where the company has requested them for their opinion regarding my gratuity entitlement."
The CPIO furnished a reply to the appellant on 21.01.2022 wherein Section 8(1)(h) of the RTI Act was invoked to deny the information on points 1-20 & 24; as for points 21 & 25, copy of two letters dated 21.12.2021 of BNM addressed to the Appellant and a letter of 08.12.2021 addressed to M/s MSSV & Co., Chartered Accountants, Bangalore was provided. Further, for points 22 & 23, it was informed that the information is not held.
Being dissatisfied, the appellant filed a First Appeal dated 24.01.2022. FAA's order, dated 21.02.2022 upheld the CPIO's reply and as for the observations therein, it read similar to the FAA's order quoted in File No. CIC/RBIND/A/2022/116748 above.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present: -
Appellant: Present through video conference.
Respondent: K Dinkar, General Manager & CPIO present through video conference.
The Appellant at the outset stated that he has already submitted his contentions in writing and for the sake of clarity, the contents are reproduced hereunder:
"3. The information sought relates to my unpaid dues running into lakhs. The company informed me that the matter is under consideration of its Board. The company also informed that CVC has sought some Information from it, details have been furnished and it has sought some clarification from RBI. The CPIO, while claiming exemption under Section 8(1)(h), did not clarify whether this exchange of information is treated as 'Investigation or there is a separate investigation going on. Since this aspect was left open, I dealt with both possibilities in my appeals.
4. The Hon'ble High Court of Delhi had observed in CBDT vs. Satya Narain Shukla that "The process of investigation as contemplated under Section 8(1)(h) of the Act is one in the nature of a probe and an inquiry, Clearly, verification from records cannot be termed as an investigation." Madam, Information or knowledge 11 transfer differs from investigation. Any information sought or provided involves exchange of material held on record. Similarly, any clarification sought or provided involves expert opinion, which the expert would provide based on laws, rules, case laws and facts of the case. The intent is to obtain or provide information or knowledge, Le., transfer of recorded information or knowledge from the holder to the seeker and thereby increase the information or knowledge base of the seeker.
The information or knowledge transfer typically happens through mutual interaction by way of correspondence or discussion or both. The intent behind an investigation, on the other hand, is to determine if allegations of misconduct or violation of any law or rule against a person are substantiated. The process has certain essential elements, i.e. specific allegations, framing of charges, naming of the accused, appointment of enquiry officer, examination of documentary evidence, statements of witnesses etc. Last but not the least, the accused is provided an opportunity of defence. Both the process and intent are different in the two cases. Madam, with your kind permission, I now turn to dealing with these two possibilities.
5. The first possibility is that the consideration by the Board and correspondence exchanged with CVC and RBI is treated as investigation and there is no separate probe or enquiry. Any matter under consideration of the Board Involves submission of relevant information to the Board and seeking its directions. Similarly, any information or clarification sought or provided by or to any authority amounts to information or knowledge transfer. Hence, if the learned CPIO has treated this process of information or knowledge transfer as 'investigation', it is an error ab initio since the transaction Involves transfer of recorded information or knowledge, no probe or enquiry is involved and therefore it amounts to "verification from records' and not 'investigation' as defined by the Hon'ble High Court of Delhi,
6. Second possibility is that there is a separate investigation. The Hon'ble Delhi High Court had observed in B.S. Mathur vs. PIO of Delhi High Court that "It will have to be shown by the public authority that the Information sought 'would impede the process of investigation. Mere reproducing of the wording of the statute would not be sufficient when recourse is had to Section 8(1)(h) RTI Act. The burden is on the public authority to show in what manner the disclosure of such information would impede the investigation."
7. The Hon'ble CIC held in Sanjeev Kapoor vs. CPIO, NTPC that "The expression which would impede as occurring in clause (h) of Section 8(1) of RTI Act is the touchstone to decide whether a plece of Information qualifies for exemption from 12 disclosure or not. The legislature in its wisdom has deliberately chosen the word 'which would', reflecting that the only eventuality flowing from such disclosure would necessarily result in impeding the process of investigation, apprehension or prosecution of offenders. The public authority must exhibit cogent material to support that disclosure would necessarily impede the process of investigation or apprehension or prosecution of offenders. Had the legislature intended to cast a blanket cover in all such cases, it would have used the expression which could impede. Upon a plain reading of the statute, the Commission is left with no doubt that the onus to exhibit imminent and real threat of Impeding process of investigation or apprehension or prosecution of offenders is cast upon the respondents". The Hon'ble CIC held in C.K. Singhania vs. CPIO, Ministry of Coal that "Mere apprehension in the mind of CPIO that disclosure of information would impede investigation or prosecution cannot substitute a subjective opinion formed on the basis of cogent material".
8. The Hon'ble High Court of Delhi observed in Sudhirranjan Senapati vs. Union of India and ors. that "A learned single judge of this court in Bhagat Singh's case has construed the said provision of the Act to mean that in order to claim exemption under the said provision, the authority withholding the Information must disclose satisfactory reasons as to why the release of information would hamper Investigation. The reasons disclosed should be germane to the formation of opinion that the process of investigation would be hampered. The said opinion should be reasonable and based on material facts. The learned single judge goes on to observe that without this consideration, Section 8(1)(h) and other such provisions of the RTI Act would become a haven for dodging demands for information."
9. The Hon'ble High Court of Delhi held in Union Of India vs. O.P. Nahar that "A careful reading of the provision would show that the holder of the information can only withhold the Information if it is able to demonstrate that the information would "impede" the process of Investigation or apprehension or prosecution of the offenders." The Hon'ble High Court held in CBDT vs. Satya Narain Shukla that "Only such information which impedes the process of investigation can be denied". The Hon'ble High Court held in Bhagat Singh vs. CIC & ors. that "mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process".
xxx 13
11. Madam, I very humbly submit that it is clear that information can only be denied under Section 8(1)(h) for cogent reasons based on material facts and such reasons have to be disclosed, Mere reproducing of the wording of the statute (like it has been done in the instant cases) or making general statements or merely saying that the process of investigation will be impeded or definitely be impeded is not enough. It has to be demonstrated how and why the information, if disclosed, would necessarily impede the process of Investigation. The public authority has to exhibit that there is an imminent and real threat of impeding process of investigation if the information is disclosed Impediment in the process of Investigation has to be a necessary and not merely a possible or likely outcome of disclosure of information sought and the burden of proof is on the public authority. Mere apprehension in the mind of the CPIO that disclosure of information sought would impede the investigation is not a valid ground for denial. In the instant case, the learned CPIO has failed to demonstrate how the process of investigation will necessarily be impeded if the information sought is disclosed and has merely reproduced the wordings of the law while denying the information.
12. Madam, the Hon'ble High Court and this Hon'ble Commission have laid down a framework, drawing from the intent of the legislature, for denying Information under Section B(1)(h). In the instant cases, the information has been denied without complying with this framework.
13. The learned FAA has observed that Information sought by CVC from the company pertaining to me and the correspondences made to the Board in the matter would definitely impede the progress of Investigation and falls under the exemption clause of Section 8(1)(h) of the RTI Act. As per para 3 of the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training OM No. 10/23/2007-IR dated 9th July, 2007, the Appellate Authority is required to give Justification for the decision arrived at. However, the learned FAA has not given any justification for his decision in this case. Also, the FAA has not made any mention of the correspondence with RBI which was also sought by me and denied on the same ground.
14. The learned FAA has further observed that the correspondence of CVC with the company is part of Internal Investigation and not necessarily disclosable as it is indeed exempt from disclosure under section B(1)(h) of RTI Act. Madam, I very humbly submit that disclosure is the rule under the scheme of the RTI Act; denial is an exception. Information can only be denied on valid grounds as provided for in the Act. "Not necessarily disclosable" is not a valid ground for denial under Act. To 14 borrow the learned FAA's terminology with due respect, as per the law the Information has to be "necessarily not disclosable" and not necessarily disclosable"
before it can be denied.
15. Madam, it is clear from the foregoing that the learned CPIO has erred in denying the information and the learned FAA has erred in upholding the decisions of the CPIO. In view of the above, I very humbly pray that this Hon'ble Commission be kindly pleased to set aside the learned FAA's orders and direct the company to provide the information sought.
16. The learned FAA has observed that instead of waiting for the Competent Authority's decision, I have been trying to redress my grievance through filing repeated RTI applications and appeals. Madam, I very humbly submit that it is not for the learned FAA to dictate when and what I should do. The learned FAA has clearly exceeded his brief while making this observation. I also submit that I have not gone beyond seeking information in my RTI requests. The learned FAA has also not cited any such example. I, therefore, very humbly pray that this Hon'ble Commission be pleased to expunge these remarks from the learned FAA's order.
17. The learned FAA has alleged that I have been misusing the RTI Act, as is evident from the plethora of RTI applications and appeals filed by me. Madam, I have been forced to take recourse to RTI to get information about my unpaid dues, which run into millions, because the company was not replying to anything else. Section 6(2) of the RTI Act categorically states that an applicant is not required to give any reason for requesting the information. Still, I have done so in all my applications. In this background, terming my RTI applications as 'misuse' is not in order. I, therefore, very humbly pray that this Hon'ble Commission be pleased to expunge these remarks from the learned FAA's order.
18. The leamed FAA has observed that I have been resorting to RTI applications and appeals so as to intimidate the public authority. The words used by the learned FAA suggest that intimidation is the primary purpose of my RTI applications, not even an unintended consequence. I very humbly submit that this is not true, nor is there any reason why I should want to do so. I only want to know why my dues have not been paid. It is merely a quest for truth and transparency. There is no reason why the company should feel threatened or intimidated by this. I have always been polite and never used any threatening or Intimidating language in my communications. I, therefore, very humbly pray that this Hon'ble Commission be pleased to expunge these remarks from the learned FAA's order.
1519. The learned FAA has observed that I have written many letters to the company to which the company has replied with available Information vide its letters dated 2 December, 2021 and 21" December, 2021. I submit that these letters do not contain the information sought in the RTI application. It is pertinent to note that the learned FAA has stated that available information has been provided to me whereas the CPIO has denied a lot of information under Section 8(1)(h), which means that this information is available but has not been provided since only what is available can be denied under Section B(1)(h). There is a clear contradiction between the statements of the learned CPIO and the learned FAA.
20.I had, inter alia, sought a copy of reply received from RBI to the clarification sought by the company. The CPIO denied the information under section 8(1)(h) of the RTI Act This means the This means that reply from RBI has been received because only what is available can be denied under section 8(1)(h). The FAA, however, has observed in his order dated 21st February, 2022 (which is subsequent to the CPIO's reply) that clarification sought from RBI is awaited. There is again a contradiction between the statements of the learned CPIO and the learned FAA."
The CPIO also submitted on the lines of his exhaustive written submissions dated 31.08.2023 (filed in both the cases separately but on identical lines) extrapolating on the contents of the FAA's orders in both the cases. The relevant contents of his submissions extracted from both the cases are reproduced as under:
"6. It is submitted that the appellant held the post of Chief General Manager of Reserve Bank of India (hereinafter referred to as "RBI") till May 31, 2017. At the time of taking voluntary retirement from the services of RBI, the appellant was in the cadre of Grade 'F'. Subsequently, RBI vide Transfer letter dated 11 April 2017, placed his services in Bharatiya Reserve Bank Note Mudran Private Limited (hereinafter referred to as "BRBNNPL) being the respondent Public Authority, for the post of the Managing Director. The tenure of the appellant was for Director. The tenure of the appellant was for 3 years on a contractual basis commencing from 1 June 2017. In the interregnum the appellant would take over as Managing Director and he was to be an understudy to the erstwhile Managing Director.
7. During the tenure of the appellant in the BRBNMPL, the Chief Vigilance Officer (CVO) had conducted a CTE type inspection of the BRBNML's Mysuru office for the period 13 December 2018 to 18 December 2018. During the inspection, the CVO observed- that certain officials had violated the Manual Guidelines, Tender 16 Conditions, and CVC Guidelines while finalizing the Tender enquiry no. 127/MYS/CIVIL /2017-18 dated 7th March 2018 for Township Maintenance and Facility Management Services, Mysuru with an annual contract value of Rs 85.89 lakhs. Further, the inspection revealed that certain officials were involved in:
a. Giving undue favor to a contractor, b. Causing financial loss to BRENMPL and c. Tampering/altering the records using a whitener to correct their mistakes Further, it is noticed that since the violations/deviations committed by the officials resulted in the payment of the excess amount of Rs. 1,40,560/- for the period between June 2018 to December 2018, the Mysuru office of BRBNMPL cancelled the contract/work order and fresh tender was floated. In furtherance of refloating the tender, the Mysuru Office also recovered a sum of Rs. 35,651/- from the contractor towards the difference in wages paid to the contractor for not deploying a manager with the required qualifications.
8. The CVO formulated a report on the CTE type inspection. The CVO sent the CTE report dated 28 March 2019 to the Managing Director, BRBNMPL, the appellant herein, and advised that the office may consider to initiate disciplinary proceedings against the officials named in the CTE report who had caused the apparent loss to BRBNMPL. The CVO also advised that BRENMPL may take corrective steps so as to avoid such violations in the future. The Managing Director ie, the appellant herein, had accepted the said report and initiated a disciplinary enquiry against the officials named in the report.
9. It is submitted that after a detailed enquiry, on October 28, 2019, the appellant, the then DA, issued show cause notices to officials named in the report.
Based on the replies to the show cause notices, the appellant, exercised his discretion and arrived at a decision as under:
(a) Vide speaking order dated 11th December 2019, found Eight (8) Officers guilty of lapses; and
(b) Vide speaking order dated 13th December 2019, imposed a penalty of "Censure" and on 4 officers; and
(c) Vide speaking order dated 16th December 2019, issued charge sheets on Four (4) other officers.17
10. It is submitted that after the cessation of the contractual term of the appellant on the contract with RBI (on completion of the contract period on 31st May 2020), as the Managing Director of BRBNMPL, the Vigilance Division observed that while the appellant was exercising the powers of the Disciplinary Authority, he had committed dereliction in performing his duties.
11. It is submitted that on the date of instant RTI application...., the advises from Central Vigilance Commission (hereinafter CVC) to the respondent Company were existing vide CVC Office Memorandum dated 24/12/2020 as regards that the Commission desired what action can be taken against Shri S.K. Maheshwar, the appellant. The CVO, BRBRNMPL is therefore advised to intimate whether any pecuniary action is possible against him to the Commission at the earliest. It is submitted that vide another Office Memorandum dated 06/10/2021, the CVC has advised that matter in respect of Shri S.K. Maheshwari, MD may be referred to the concerned Disciplinary Authority for necessary action.
12. It is submitted that on cessation of the contractual terms of the appellant in the Company on 31/05/2020 all contractual dues accrued to him have been settled as per the terms of the contract. However, it is submitted that on September 22, 2020, a review of Productivity Linked Reward (hereinafter PLR) was undertaken by the Company and the Company vide its Administration Circular no. 9 dated 12/11/2020 and Administration circular no. 10 dated 12/11/2020 has revised the scheme of PLR and as per the scheme certain amount was payable to the appellant subject to the approval of the Competent Authority.
13. It is further submitted that since the appellant had taken voluntary retirement from RBI and deployed on contract and after expiry of contractual period on May 31, 2020 and since the provisions of BRBNML service Rules are not applicable to the Managing Director who is the functional Director of the Board, therefore in the absence of clarity in the matter of who is the appropriate Disciplinary Authority in respect of the appellant, a confirmation cum clarification was sought from RBI, who has entered into contract with the appellant, as regards who would be the Competent Authority for retired officials nominated by RBI in the Board of BRBNMPL as functional Director le. Managing Director.
15. However, RBI vide their letter dated May 30, 2022 much after the date of reply of CPIO and order of FAA, has advised that the Board of BRBNMPL is the Competent Authority for retired officials nominated by RBI in the Board of BRBNMPL as functional Director i.e. Managing Director. The Board may deliberate the 18 proposal and lay down procedural details for disciplinary proceedings and otherwise (copy enclosed as Annexure-IV).
16. It is submitted that after issue of Administration Circular no. 9 and 10 dated November 12, 2020 on the revised Productivity Linked Reward (PLR) scheme and after coming to know of such revision after the cessation of contract on 31/05/2020, the appellant was bent upon in filing 8 RTI applications with plethora of queries and 8 First appeals adopting the pressure tactics for release of PLR in the garb of filing RTI applications leading to first and second appeals and to vent off his grievances. The appellant was informed in answering of his repeated queries by the CPIO that the issue of PLR is under the consideration of the Competent Authority and the status continues.
17. It is submitted that pending Disciplinary/Administrative action by the Competent Authority any divulging of information pertaining to the investigation in the matter of vigilance case on the basis of the advises of CVC would jeopardize the interests of both the appellant as well as the public authority concerned.
18. It is submitted that the appellant was misusing the provisions of RTI Act, 2005 for his own interests of release of PLR amount, for redressal of his grievances, which was kept on hold on the basis of existence of two advises of CVC dated 24/12/2020 and dated 06/10/2021 and the pending decision of the Competent Authority in the matter.
19. It is further submitted that the clarification and confirmation from RBI as regards the appropriate Disciplinary authority in respect of retired official placed on contract and after cessation of contractual period could only be received by the respondent Company on 30/05/2022 vide letter of RBI dated May 30, 2022, much after the date of reply of CPIO and order of FAA on the instant RTI application dated 24/01/2022 and first appeal dated 22/02/2022. It is pertinent to mention that on the direction of the Board of Directors of the Company the appellant has been issued with a Letter of Calling for Explanation (hereinafter called LCE) by the Competent Authority on April 20, 2023.
20. It is submitted that the appellant instead of waiting for the decision of the Competent authority in the matter the appellant has adopted the provisions of RTI Act, 2005 for easy redressal of his grievance by filing 8 RTI applications and 8 RTI first appeals, when appellant was time and again informed in reply to his RTI 19 queries, that the issue of PLR is under the consideration of Competent Authority and the status continues.
21. It is submitted that a Letter Calling for an Explanation ("LCE') was issued to the appellant on 20th April 2023 with an instruction to submit the reply within 10 days from the date of receipt of the LCE, as to why appropriate action should not be taken against the appellant for committing dereliction of duties while essaying the role of Disciplinary Authority. The appellant addressed a letter to the Company dated 22nd April, 2023 requesting certain additional copies of documents to enable him to submit his reply and also sought an extension of time. Subsequently, the appellant sent another letter dated 27th April 2023 requesting further additional documents. The Company vide its letter dated 12th May 2023 provided all the documents that were feasible and justified to provide. Despite providing the requisite documents, the appellant sent another letter dated 13th May 2023, requesting additional documents, and sought a further extension of time. It was considered by the Company that the appellant's demands are unreasonable which clearly demonstrated that the appellant is purposely trying to protract the proceedings in the garb of seeking additional documents. However, it is mentioned that the appellant has rendered a reply to the LCE on 5th July 2023 (Reply) wherein certain contentions and issues were raised and the same is being considered by the Competent Authority and the decision in the matter is awaited.
22. It is submitted that the FAA has observed that the appellant has raised so many letters to the Company on the issue of non-payment of PLR, SPA etc. to which the Company has replied him with the available information vide reply letter dated December 2, 2021 and reply letter dated December 21, 2021 which are very explicit in providing information to the appellant. Instead of awaiting the decision of the Competent Authority, the appellant has been resorting to filling of repeated RTI applications and appeals so as to intimidate the public authority concerned to redress his grievance when the appellant is very much aware of the fact that such matter is pending before the Competent authority as certain clarification in the matter sought from the department concerned of RBI is awaited and the said position has been intimated to the appellant vide Company's letter dated December 21, 2021.
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35. Therefore, the ground taken by the appellant that it has to be demonstrated how and why the information, if disclosed, would necessarily impede 20 the process of investigation is not correct and justified when the appellant is very much aware that the issue of payment of PLR and SPA etc. is pending for consideration of the Competent Authority and the CVC advises are existing. Therefore, the allegations made by the appellant are neither true and correct nor can be established by the appellant and the FAA is also in agreement with the decision and reply of the Central Public Information Officer in compliance of the provisions of the RTI Act, 2005. The appellant has also taken the ground that the provider did not have a choice of receiver. The Company or its official or the concerned Division came to possess the information in the normal course of discharge of their duty. It was not especially entrusted to them in course of a fiduciary relationship to be held in trust and used for the benefit of the provider.
36. It is submitted that any memorandum placed before the Board for approval is put up to the Board by the Managing Director who is the functional director of the Board and the records are kept confidential in the Board section. The appellant is aware of the fact having been the functional director on the Board of BRBNMPL during his tenure. All information of the Board section including Memorandum and Board resolution are indeed confidential in nature and are available only on the specific advises of the Board to the officials and Divisions attached to Board In the fiduciary capacity in dealing with such matters. Therefore, the contentions of the appellant in the grounds of appeal are not correct."
Decision:
The Commission based on a perusal of the facts on record observes at the outset that through the instant set of RTI Application, the Appellant has primarily expressed conjecture and speculated about the availability of records related to the decision, if any, taken by the Board on his payment of dues. In the RTI Application dated 24.01.2022, the Appellant has either asked for clarifications on the aspects of the investigation, requiring the CPIO to find out what are the allegations, what were the basis of it and if the same has been concluded etc. and even the record that has been sought for is based on a suppositional query and not any specific record.
For better understanding of the mandate of the RTI Act, the Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act.21
For the sake of clarity, the provision of Section 2(f) of the RTI Act is reproduced hereunder:
"2. Definitions.--In this Act, unless the context otherwise requires,--
(f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;.."
In this regard, the Appellant's attention is drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it was held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide `advice' or `opinion' to an applicant, nor required to obtain and furnish any `opinion' or `advice' to an applicant. The reference to `opinion' or `advice' in the definition of `information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act." (Emphasis Supplied) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer &Ors. [SLP (CIVIL) NO.34868 OF 2009], the Hon'ble Supreme Court held as under:
"7....Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him...." (Emphasis Supplied) 22 And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.
Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information." (Emphasis Supplied) As for the RTI Application dated 24.12.2021 which is also similarly worded by the Appellant but harping on "all communications" or "any communication", it is pertinent to note that the same does not even conform to the word limit prescribed under Rule 3 of RTI Rules, 2012.
Now, the CPIO has clarified at this stage the delay caused in appointing a DA in the Appellant's case and the factual status that the decision of the Board is pending in the matter of payment of the dues and the said clarification by and large answers all of the surmises raised by the Appellant in his RTI Applications. Having observed the inadequacies in the instant set of RTI Applications as mentioned in the preceding paragraphs, the Commission is not in a position to threadbare analyse the applicability or non-applicability of the exemptions of Section 8(1)(h) or Section 8(1)(e) of the RTI Act in the matter, however, from the contents of the FAA's order as well as the CPIO's submissions, the exemptions invoked do not appear to be out 23 of place given the unspecific and extent of suppositional records desired by the Appellant.
In view of the foregoing, no scope of relief is pertinent in the matter.
The appeal(s) are disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) हािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 24