Central Information Commission
Arvind Domadia vs Chief Commissioner, Central Excise, ... on 10 January, 2018
CENTRAL INFORMATION COMMISSION
Room No. 305, 3rd Floor, CIC Bhavan, Baba Gangnath Marg, Munirka,
New Delhi-110067, website:cic.gov.in
Appeal No.:-CIC/DGCEI/A/2017/177106-BJ
+CIC/CCEAB/A/2017/177117-BJ
Appellant : Mr. Arvind Domadia,
Respondent : 1. CPIO,
CPIO & Dy. Director,
Directorate General of Central Excise
Intelligence Zonal Unit, Ahmedabad,
1st Floor, Preema Chambers,
Mithakali Six Roads,
Ellis Bridge Post, Navrangpura,
Ahmedabad-380 006, Gujarat.
2. CPIO & Dy. Director,
Directorate General of Central Excise
Intelligence, Vadodara Regional Unit,
1st Floor, Pujer Complex,
Opp. Golden Silver Apartment,
Subhanpura, Vadodara-390023, Gujarat.
Date of Hearing : 09.01.2018
Date of Decision : 10.01.2018
Date of filing of RTI application 06.04.2016
CPIO's response 04.05.2016
And
05.05.2016
Date of filing the First Appeal 01.06.2016
First Appellate Authority's response 30.06.2016
Date of diarised receipt of second appeal by the Commission 05.10.2016
ORDER
FACTS:
The Appellant vide his RTI application sought information on 05 points (a to
e) regarding copy of the full file maintained by Ahmedabad DGCEI Office and Vadodara DGCEI Office report/ documents prepared by DGCEI officers in pursuance of their personal visit to their APMC Amreli site on 08.12.2015, etc. The CPIO and Dy. Director, Directorate General of Central Excise Intelligence, Vadodara Regional Office, vide its letter dated 04.05.2016, denied disclosure of information on points a, c and e as per Section 8 (1) (h) Page 1 of 6 of the RTI Act, 2005 on the ground that the SCN was still pending for adjudication and hence "investigation" in the matter had not reached its finality. Furthermore, the information was also denied as per Section 8 (1) (j) of the RTI Act, 2005 on the ground that the Appellant himself was the Director of the Company against which the SCN dated 28.03.2016 had been issued. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 30.06.2016 upheld the reply of the CPIO and stated that the decision of Shri R.K. Jain v. Rajinder Kumar, CPIO was not squarely applicable to the facts of the case since in that case the Appellant was himself the Complainant and was seeking course of action on his Complaint.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Absent;
Respondent: Mr. S.K. Katiyar, Assistant Director, DGCEI, Vadodara and Ms. Mansi Trivedi, Dy. Director, Ahmedabad through VC;
The Appellant remained absent during the hearing. Mr. Kishan Kesharia, Network Engineer NIC Studio at Rajkot confirmed his absence. The Respondents reiterated the contents of their written submission and submitted that the matter at the present stage had not attained its finality and information containing the note sheet and other relevant records of the concerned investigating file could not be furnished to the Appellant at this stage since it would impede the process of investigation and such documents contained the name of the Department officers who were involved in the said investigation and any such disclosure could endanger the life or physical safety of the officer involved in the process of investigation. Therefore, it was submitted that the information sought by the Appellant was denied from disclosure u/s 8(1)(g) & (h) of the RTI Act, 2005.
The Respondent vide his written submission dated 29.11.2017 submitted that an RTI application was filed by the Appellant dated 06.04.2016 before the CPIO & Dy. Director, DGCEI, Zonal Unit, Ahemdabad seeking certain information relating to SCN dated 28.03.2016. The said information was denied from disclosure w.r.t Point b, c and d u/s 8(1)(h) of the RTI Act,2005 ibid on the ground that the aforesaid SCN was still pending for adjudication and therefore 'investigation' in the matter had not reached its finality. It was further explained that providing requisite information could adversely affect and impede the process of investigation. Reliance was placed by the CPIO on the decision of the Commission in order dated CIC/SS/A/2011/000684 dated 12.07.2011. Moreover, the FAA had also upheld the response of the CPIO. The FAA in its order had observed that the Appellant was the director of the company (M/s Kunal Structure(I) Pvt. Ltd) and the said documents had been sought in relation to their own case. However, no larger public interest was exhibited in seeking such information. A reference was made to several orders of the Commission in Decision no. CIC/AT/A/2007/00007 Page 2 of 6 dated 10.07.2007 in Decision no. CIC/AT/A/2008/01466 dated 23.03.2009 and in Decision no. CIC/AT/2007/00017 dated 28.03.2007 to substantiate their contention. Therefore, it was submitted that the Appellant had not demanded any specific document and therefore under such circumstance, seeking complete investigating file was only with an aim to obtain secret details pertaining to intelligence, role of its officers, etc. It was informed that on the basis of intelligence, a case was booked and a SCN demanding Central Excise Duty of Rs. 1.48 Crore had been issued to M/s Kunal Structures. The Company to whom the SCN had been issued had provided all the relevant documents. It was brought to their notice that the Appellant was the director of the said company and had sought the relevant documents through the instant RTI application. Therefore, it was submitted that the case did not attain the finality, the documents sought for by the Appellant could not be provided as per Section 8(1)(h) of the RTI Act, 2005.
The Respondent (CPIO & Asst. Director, O/o Directorate General Of CGST Intelligence, Vadodra vide its written submission dated 27.11.2017 submitted that a SCN dated 28.03.2016 was issued to M/s Kunal Structures(India) Pvt. Ltd, Rajkot and that the Appellant was the director of the said company. On issuance of the said SCN, certain information was sought by the Appellant vide his RTI application. Explaining the background of the matter, it was stated that after the investigation, a SCN demanding Central Excise duty of Rs.1.48 crore was issued against the said Company. The Addl. Commissioner of Central Excise, Rajkot had adjudicated the said show cause notice on 31.03.2017 and had confirmed the demand of Rs.1,47,54,593/-penalty being imposed on M/s Kunal Structures. It was further submitted that no record regarding the payment of the said confirmed Central Excise duty and penalty were available and therefore it appeared that the said company had filed an Appeal before the Appropriate Authority. No further orders from the Appellate Authority were available in their office and therefore it was informed that the matter in hand had not attained its finality and could be pending at the Appellate stage. In addition, reliance was placed on the decision of the Commission in Decision no. CIC/AT/A/2007/00007 dated 10.07.2007, in Decision no. CIC/AT/A/2008/01466 dated 23.03.2009 to substantiate his submission.
In this context, the Commission in the decision of K.S. Prasad vs SEBI CIC/AT/A/2007/007/00234 had held as under:
"...as soon as an investigation or an enquiry by a subordinate Enquiry Officer in Civil and Administrative matters comes to an end and, the investigation report is submitted to a higher authority, it cannot be said to be the end of investigation. ... which can be truly said to be concluded only with the decision by the competent authority."
In this context a reference can be made to the decision of the bench of the Commission in Shri Arun Kumar Agrawal v. SEBI CIC/SM/A/2012/000196 dated 28.11.2014 wherein it was held as under:Page 3 of 6
"15. In the present case, final orders are yet to be passed by the competent authority under the SEBI Act. Therefore, the process of investigation against the RIL is still pending before SEBI and it cannot be said the same has reached its conclusion. Hence, the requested information falls under exemption under section 8(1) (h) of the Act.
16. The Commission recognizes the perspective brought out on public interest in the course of the hearing. The appellant had underlined emphatically the dimensions of public interest overriding the protected interest, i.e. the protection given to the 'fiduciary' elements. However, the other side argued that the appellant is overstating the public interest without taking into account that the investigation is still going on. We have, therefore, to await the completion of this investigation. It will not be wise for the Commission to speculate as to what conclusions the SEBI will draw."
The Commission noted the decision of the Hon'ble Delhi High Court in W.P (C) in 7177/2017 wherein it was observed as under:
"10. This Court finds it difficult to countenance the manner in which the present matter is proceeded ( initially the information has been denied with the petitioner on account of the list being confidential; this ground was not accepted by the FAA and the CIC has ordered that no interference is warranted because the information has already been provided). However, there is no denying the fact that information sought by the petitioner has been provided to him, albeit, by a different source. Since the information sought by the petitioner has already been provided, no further orders are required to be passed in this petition."
In this context, the Commission referred to the decision the Hon'ble Supreme Court vide decision dated 13/12/20012 Bihar Public Service Commission vs. Sayyed Hussain Abbas Rizvi & Anr [Civil appeal No. 9052 of 2012] wherein it had held that section 8(1)(g) can come into play with any kind of relationship. It requires that where the disclosure of such information 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 purpose, the information need not be provided. In other words if in the opinion of the concerned authority there is danger to life or possibility of danger to physical safety, the CPIO would be entitled to bring such case within the exemption of Section 8(1)(g) of the RTI Act. It was further held in para 30 of the decision that:
"Marks are required to be disclosed but disclosure of individual names would hardly hold relevancy either to the concept of transparency or for proper exercise of the right to information within the limitation of the Act."
Furthermore, in the matter of Kerala Public Service Commission and Ors. v. The State Information Commission and Anr. Civil Appeal Nos. 823-854 of Page 4 of 6 2016, a similar decision was made by the Hon'ble Supreme Court of India. The following was held in para 10 and 11 of the decision:
"10.................If we allow disclosing name of the examiners in every exam, the unsuccessful candidates may try to take revenge from the examiners for doing their job properly. This may, further, create a situation where the potential candidates in the next similar exam, especially in the same state or in the same level will try to contact the disclosed examiners for any potential gain by illegal means in the potential exam The Hon'ble High Court of Delhi in its decision dated 7/10/2013 [W.P. (C) 4079/2013 Union Public Service Commission vs. G S Sandhu] has held as under:
"11. In my view, the apprehension of the petitioner that if the identity of the author of the file notings is revealed by his name, designation or in any other manner, there is a possibility of such an employee being targeted, harassed and even intimidated by the persons against whom an adverse noting is recorded by him on the file of UPSC, is fully justified. Though, ultimately it is for the members of the UPSC who are to accept or reject such notings, this can hardly be disputed that the notings do play a vital role in the advice which UPSC ultimately renders to the concerned department. Therefore, the person against whom an adverse advice is given may hold the employee of UPSC recording a note adverse to him on the file, responsible for an adverse advice given by UPSC against him and may, therefore, harass and sometime even harm such an employee/officer of UPSC, directly or indirectly. To this extent, the officers of UPSC need to be protected.
Similarly, the Commission referred to the matter of K.L. Balbani v. DG Vigilance, Customs and Central Excise; Appeal No. CIC/AT/A/2009/0617 dated 16.09.2009 wherein it was held that file noting in vigilance files cannot be authorized to be disclosed as these amounted to information confidentially held by the public authority. It was also observed that applying section 10 (1) and hiding the names of the authors of the file noting will not serve any purpose as even without the authors' names, the identity of the authors of the notes could be disclosed by reference to the hierarchies through which the file passes as well as the handwriting in which the notes were recorded.
The Appellant was not present to contest the submissions of the Respondent or to establish the larger public interest in disclosure which outweighs the harm to the protected interests.Page 5 of 6
DECISION Keeping in view the facts of the case and the submissions made by the Respondent, no further intervention of the Commission is required in the matter.
The Appeals stand disposed accordingly.
(Bimal Julka) Information Commissioner Authenticated True Copy:
(K.L.Das) Deputy Registrar Page 6 of 6