Central Information Commission
Manish Panwar vs Chief Commissioner, Cgst & Central ... on 25 November, 2022
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/CCEJP/A/2022/603445
Manish Panwar ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Assistant Commissioner, CGST
Commissionerate, Alwar, RTI
Cell, A Block, Surya Nagar,
Alwar-301001, Rajasthan .... ितवादीगण /Respondent
Date of Hearing : 24/11/2022
Date of Decision : 24/11/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 25/08/2021
CPIO replied on : 16/09/2021
First appeal filed on : 13/10/2021
First Appellate Authority's order : 01/11/2021
2nd Appeal/Complaint dated : 17/01/2022
Information sought:
The Appellant filed an RTI application dated 25.08.2021 seeking the following information:
".......it is requested to kindly provide a copy of complete file bearing No. II- 39/14/Vig./AIw/2016 along with Note sheet pages, all correspondences and supporting documents from the date of opening of the file till the issuance 1 of Final order dated 19.03.2021. Now, as no such inquiry or the decision is pending at any stage and the case was concluded.
2. The required postal order is also enclosed with a request to inform the undersigned the cost which is applicable for furnishing the documents. As the matter is time bound for me, so it is requested to provide the documents within 7 day. Any cost prescribed under the Act, in the matter will be paid in the required manner."
The CPIO replied to the appellant on 16.09.2021 as under:-
"............it is intimated that you have filed IIIrd RTI application seeking same set of information i.e. photo copy vigilance case file No.II-39/14/Vig./Alw/2016 and Note Sheets thereof. You have earlier voluntarily withdrawn an RTI appeal in this regard.
Further in this regard you have filed an appeal before the Chief Commissioner, CGST and Central Excise, Jaipur Zone, Jaipur against the order dated 19.03.2021 which is pending before the Appellate Authority and the original case file has been sent to the CCO, Jaipur on 02.07.2021.
In this regard the matter has been examined and it is observed that the vigilance case file sought by you pertains to your own vigilance case and a number of documents i.e. Charge Memorandum along with RUD's, I.O report, reply to the query and representation etc., submitted by you, Show Cause Notice issued to you and Order passed by the Disciplinary Authority are already available with you or provided from time to time to you. The remaining documents in the concerned F.No.II-39/14/Vig./Alw/2016 contain documents/correspondence received from the complainant and correspondence between Commissionerate office (CCO) and DGoV, New Delhi. Such documents i.e. copies of complaint received against you, and internal confidential correspondence was not been considered fit to be disclosed in terms of Section 11(1) read with Section 2(n) and section 8(1) (g) of the RTI Act, 2005."
Being dissatisfied, the appellant filed a First Appeal dated 13.10.2021. FAA's order dated 01.11.2021 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-2
Appellant: Present through video conference.
Respondent: Giriraj Ram Meena, CPIO present through video conference.
The submissions of the CPIO have been succinctly put in his written arguments dated 23.11.2022 as under:
"2. The aforesaid second appeal filed by Shri Manish Panwar before the Hon'ble Central Information Commission (CIC) has been examined and it has been observed that the main and only one allegation levelled by the appellant in the said second appeal is that, "the CPIO has failed to provide the information and took different views on two similar RTI applications filed by the appellant before the department. The appellant has alleged that while deciding his appeal dated 08.12.2020 tiled by him in respect of his first RTI application dated 19.10.2020. the department has denied to provide information/documents sought by him, in terms of Section 8(1)(h) of the RTI Act, 2005. On the other hand, while deciding appeal dated 13.10.2021 of the appellant in respect of his second RTI application dated 25.08.2021, the department had denied to provide information/documents sought by him, in terms of Section 11(1) read with Section 2(n) and Section 8(1)(g) of the RTI Act, 2005 as well as Section 8(1)(d) & (i) ibid.
3.1. It is submitted that as per records available with this office, at the material time of first RTI application dated 19.10.2020 as well as subsequent RT1 appeal dated 08.12.2020 filed by Shri Manish Panwar, the disciplinary proceedings initiated against the appellant vide Charge Memorandum dated 17.02.2020 were not finalized, therefore. the information/documents sought by the appellant were not found fit for disclosure in terms of Section 8(1)(h) of the RTI Act, 2005.
3.2 It is pertinent to mention here that Section 8(1)(h) of the RTI Act, 2005 exempts an information which would impede the process of investigation or apprehension or prosecution of offenders.
4.1 Further. in respect of second RTI application dated 25.08.2021 and subsequent RT1 appeal dated 13.10.2021 filed by the appellant, the information / documents sought by the appellant were not found fit for disclosure in terms of Section 11(1) read with Section 2(n) and Section 8(1)(g) of the RTE Act, 2005.
4.2 Section 11(1) of the RTI Act, 2005 provides that -- Where a Central Public Information Officer or a State Public Information officer, as the case may be. intends to disclose any information or record, or part thereof on a request 3 made under this Act, which related to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information officer or State Public Information Officer, as the case may be, shall within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed and such submission of the third party shall be kept in view while taking a decision about disclosure of information:
Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party. Section 2(n) of the RTI Act, 2005 -- "third party" means a person other than the citizen making a request for information and includes a public authority.
4.3 Section 8 (1) of the RTI Act, 2005 -- Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, - (g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;
It is worthwhile to mention that the RTI application dated 25.08.2021 filed by Shri Manish Pawar was examined and it was observed that the copies of documents available in the vigilance case file sought by the applicant pertains to his own vigilance case and a number of documents i.e. Charge Memorandum along with RUD's, I.0 report, reply to the query and representation etc., submitted by the applicant, Show Cause Notice issued to the applicant and Order passed by the Disciplinary Authority were already available with him or provided from time to time to the applicant. The remaining documents in the concerned F.No.11- 39/14Nig./Alw/2016 containing documents/correspondence received from the complainant and correspondence between Commissionerate office (CCO) and Director General of Vigilance, New Delhi. Such documents i.e. copies of complaint received against the applicant, and internal confidential correspondence.
4.4 In view of above, and provisions contained under section 8(1)(g), section 11(1) and section 2(n) of the RTI Act, 2005, the documents sought by the applicant vide application dated 25.08.2021 and Appeal dated 13.10.2021 were not considered fit to be disclosed."
The Appellant did not categorically deny the averments of the CPIO but clarified that so far, he has only received information about two complaints against him, 4 but what he is looking for are the file noting(s) and records that date prior to the issuance of charge memo. He also argued that in the past orders of the Commission, it has been held that file noting(s) of one's own vigilance case cannot be denied to him.
Decision:
The Commission based on a perusal of the facts on record and from the submissions of the parties observes that the only tussle is regrading disclosure of that part of the averred vigilance file that the CPIO deems to be falling under the category of Section 8(1)(g) of the RTI Act. In the facts of the case, the Commission finds the ratio laid down by Hon'ble Delhi High Court in the matter of Union Of India vs. R.S.Khan [W.P.(C) 9355/2009 & CM No. 7144/2009] on 07.10.2010 as relevant, wherein following was the issue for adjudication:
"2. On 5th December 2008, the Petitioner applied to the CPIO in the CGDA seeking information in respect of 8 matters arising from the disciplinary proceedings conducted against her for a major penalty, which had recently been concluded. The Respondent had been awarded the penalty of „censure‟ in those disciplinary proceedings. By an order dated 7th January 2009, the CGDA rejected the request stating that the information cannot be provided as it attracted Sections 8(i)(e), 8(i)(g) and 8(i)(j) of the Right to Information Act, 2005 („RTI‟ Act, 2005). Inter alia, it was observed as under:
"Noting(s) in case of a disciplinary proceeding contain the views and opinions of the various authorities which are fiduciary in nature and the views and opinions, if made open, might antagonize the charged officer. It may also lead to the danger of the lift of the officials who have made those remarks. Further the disciplinary proceedings are conducted in an objective and fair manner with the involvement of lot of agencies which include CGDA, Ministry of Defence (Finance), and DoPT. Further disclosing entire set of notings which includes the personal information/opinion of the officials at various stages does not have any relationship with any public activity or interest.
3. The Appellate Authority concurred with the view of the CPIO and dismissed the Respondent's appeal on 4th March 2009. Thereafter, the Respondent preferred an appeal to the CIC.5
4. The CIC observed that the expression „fiduciary relationship‟ in Section 8(1)(e) of the RTI Act, 2005 could not apply to the relationship between a government and its own employees. It did not cover notings in a public document. Likewise, the reference to Section 8(1)(g) of the RTI Act was also held to be misplaced. It was held that notings made on files as part of discharge of official functions was a public activity. The CIC disagreed with the view expressed by the CPIO and the Appellate Authority that the conduct of disciplinary proceedings against the Petitioner that the notings and the files during the disciplinary proceedings did not have any relationship with public activity or public interest.
5. Ms. Maneesha Dhir, learned counsel for the Petitioner reiterated the submissions made before the CIC and supported the order of the CPIO and the Appellate Authority. She again referred to Section 8(1)(e), 8(1)(g) and 8(1)(j) of the RTI Act, 2005 and submitted that the information sought was covered under each of these provisions and was therefore exempt from disclosure. It was submitted that notings on files do not fall within the definition of information under Section 2(f) RTI Act, 2005....."
The Court held as under:
"9. Unless file notings are specifically excluded from the definition of Section 2(f), there is no warrant for proposition that the word „information‟ under Section 2(f) does not include file notings.
10. The next submission to be dealt with is that information contained in the files in the form of file notings made by the different officials dealing with the files during the course of disciplinary proceedings against the Petitioner were available to the Union of India in a „fiduciary relationship‟ within the meaning of Section 8(1)(e) of the RTI Act. This Court concurs with the view expressed by the CIC that in the context of a government servant performing official functions and making notes on a file about the performance or conduct of another officer, such noting cannot be said to be given to the government pursuant to a `fiduciary relationship‟ with the government within the meaning of Section 8(1)(e) of the RTI Act, 2005. Section 8(1)(e) is, at best, a ground to deny information to a third party on the ground that the information sought concerns a government servant, which information is available with the government pursuant to a fiduciary relationship, that such person, has with the government, as an employee.6
11. To illustrate, it will be no ground for the Union of India to deny to an employee, against whom the disciplinary proceedings are held, to withhold the information available in the Government files about such employee on the ground that such information has been given to it by some other government official who made the noting in a fiduciary relationship. This can be a ground only to deny disclosure to a third party who may be seeking information about the Petitioner in relation to the disciplinary proceedings held against her. The Union of India, can possibly argue that in view of the fiduciary relationship between the Petitioner and the Union of India it is not obligatory for the Union of India to disclose the information about her to a third party. This again is not a blanket immunity against disclosure. In terms of Section 8(1)(e) RTI Act, the Union of India will have to demonstrate that there is no larger public interest which warrants disclosure of such information....
14. In the considered view of this Court, the Union of India cannot rely upon Section 8(1)(e) of the RTI Act, 2005 to deny information to the Petitioner in the present case.
xxx
17. As regards Section 8(1)(j), there is no question that notings made in the files by government servants in discharge of their official functions is definitely a public activity and concerns the larger public interest. In the present case, Section 8(1)(j) was wrongly invoked by the CPIO and by the Appellate Authority to deny information to the Respondent."
Now, although in the instant case, the exemptions of Section 8(1)(e) and (j) has not been invoked by the CPIO, but the above dicta make it clear beyond reasonable doubt that file noting(s) in its entirety cannot be denied to the Appellant seeking the records from his own vigilance file. However, having due regard to the apprehension of the CPIO in disclosing the identities of the third parties involved in the process, the Commission affords him the liberty to redact the names, identifying particulars and other details, disclosure of which may endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes as envisaged under Section 8(1)(g) of the RTI Act.
As directed above, the CPIO shall revisit the RTI Application and provide the available information as sought for therein to the Appellant after redacting the 7 portions that are hit by the exemption of Section 8(1)(g) of the RTI Act. The redaction of the records will be carried out in consonance with the provision of Section 10 of the RTI Act. In the event that the relevant record is voluminous, the parties shall decide a mutual date and time for inspection of the redacted records, wherefrom the Appellant can identify the documents desired by him and the CPIO shall provide the same free of cost. Similarly, if the relevant records need to be procured from the concerned record holder, necessary action will be taken by the CPIO to procure the same.
The compliance of this order shall be carried out by the CPIO within 30 days from the date of receipt of this order under due intimation to the Commission.
The appeal is 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 / 8