Central Information Commission
Col. A. D. Nargolkar vs Ministry Of Defence (Mod) on 25 September, 2009
CENTRAL INFORMATION COMMISSION
Complaint Nos. CIC/WB/C/2008/00735 dated 19.6.2008
CIC/SM/C/2008/00040 dated 19.6.2008
& Appeal No. CIC/LS/A/2009/000951 dated 13.8.2009
Right to Information Act 2005 - Section 18
Complainant/Appellant - Col. A. D. Nargolkar
Respondent - Ministry of Defence (MoD)
Date of hearing: 22.9.2009
Facts
These are one complaint and two appeals moved by Col. A. D. Nargolkar of Kondhva, Pune (at present in Bareilly) against information provided on his applications and appeals before Army Headquarters and Headquarters, Southern Command.
FILE NO. CIC/LS/A/2009/000951 In this case Col. Nargolkar moved an application on 8.4.09, received at the Southern HQ on 18.4.09, before the PIO, RTI Cell HQ Southern Command seeking the following information:
"Point No. 1: A copy be supplied to me, of the Policy, Procedure and Chain/ Sequence following within HQ Southern Command for processing Court of Inquiry Proceedings received from subordinate HQ's as provided vide Ch II sec 4, especially Section 4 (1) (b) (vii) RTI Act 2005- (vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof and-section 4 (1) (e) publish all relevant facts while formulating important policies or announcing the decisions which affect public or any provision of RTYI Act, 2005. Point No. 2 (Para13): The chain of staff officers (names and appts) and branches, through which my Court of Inquiry was actually processed (and not a simple hierarchy which is already known) within HQ Southern Command from it's receipt in February 2008 till final decision by Army commander LT Gen N Thamburaj in March, 2008 be supplied to me.1
Point No. 2 1 (Para 14) Copies of File Notings of each staff officer in such processing of my court of Inquiry especially by DV, A, MS and JAG Branches of HQ Southern command be allowed to be perused and necessary copies allowed to be taken by me.
Point No. 3: The chain of staff officers (names and appts) and Branches, through which my reply to Show Cause Notice dated 14th April 2008 was actually processed (And not a simple hierarchy which is already known) within HQ Southern Command from it's receipt in April 08 till final decision by Army Commander Lt Gen N Thamburaj in June, 2008 be supplied to me.
Point No. 4: Did Col DV i.e. Col D Garg/ any officiating incumbent, or any officers in DV Branch HQ Southern Command bring to anyone's Notice to include his superiors/ juniors when Inquiry Proceedings were processed within HQ Southern Command, that Findings have been wrongly recorded by Presiding Officer and his members as in Para 6 above (or Para 12 of Findings) or that Army Rule 180 stood violated by way of HQ Southern Command letter No. 240004/ADN/GSI (B-1) dated 14th September 2007 and six other documents having been taken on record as extraneous material behind my back or that any illegality whatsoever stood made in this Inquiry in any manner? An yes/ no Answer be supplied to me, being the simplest form of Answering.
Point No. 5: Did brig ((P and A) Southern Command i.e. Brig Pattar/ Brig Prasad/ any officiating incumbent bring to anyone's Notice to include his superiors/ juniors that Findings have been wrongly recorded by Presiding officer and his Members as In Para 6 above (or Para 12 of findings) or that Army Rule 180 stood violated by way of HQ Southern Command letter No. 240004/ADN/GSI (B-1) dated 14th September 2007 and six other documents having been taken on record as extraneous material behind my back, when Inquiry Proceedings were processed within HQ Southern Command or that any illegality whatsoever stood in this Inquiry in any manner? An yes/ no answer be supplied to me, being the simplest form of Answering.
Point No. 6: Did MG/IC Adm HQ Southern Command i.e. Maj Gen D. Rajan or the current incumbent/ any officiating incumbent bring to anyone's Notice to include his superiors/ juniors that Findings have been wrongly recorded by Presiding Officer and his members as in Para 6 above (or Para 12 of findings), or that Army Rule 180 stood violated by way of HQ Southern Command letter No. 240004/ ADN/GSI (B-1) dated 14th September 2007 and six other documents having been taken on record as extraneous material behind my back, 1 Point No 2 stands repeated in the original text; hence reference to Paras 2 when Inquiry Proceedings were processed within HQ Southern Command or that any illegality whatsoever stood made in this Inquiry in any manner? An yes/ no answer be supplied to me, being the simplest form of Answering. Point No. 7: Did DJAG HQ Southern Command Brig Ashok Taskar the current incumbent/ any officiating incumbent bring to anyone's Notice to include his superiors/ juniors that Findings have been wrongly recorded by Presiding Officer and his Members as in Para 6 above (or Para 12 of findings) or that Army Rule 180 stood violated by way of HQ Southern Command and letter No. 240004/ADN/GSI (B-1) dated 14th September 2007 and six other documents having been taken on record as extraneous material behind my back, have Inquiry Proceedings were processed within HQ Southern Command or that any illegality what so ever stood made in this Inquiry in any manner? An yes/ no answer be supplied to me, being the simplest form of Answering. Point No. 8: I be supplied with all comments/ recommendations/ opinions expressed/ remarks by Col. DV/Brig (P and A)/ DJAG I/C Adm/ any officiating incumbent in their place, in the entire process in finalizing this case, since Chapter I, Section 2 (f) allows 'advice/ opinion to be supplied."
To this Col. A. D. Nargolkar received a response dated 12.5.09 pointwise informing him as follows:
"Point No. 1 (Para 12 (1): There is no specific rigid written policy and procedure for processing of Cs of 1. These are handled on a case-to-case basis depending on the nature of i8nquiry and hence same not being in existence cannot be provided. Point No. 2 (Para 13): Information cannot be provided as it is exempted under Sec 8 (1) (e) of RTI Act 2005.
Point No. 3 (Para 14): The cases are processed on merit.
Comments and advisory noting by Staff Officers are fiduciary in nature and have no public interest, hence the information is exempted under Section 8 (1) (e) of the RTI Act 2005. Point No. 3 (Para 15): Information cannot be provided as it is exempted under Sec 8 (1) (e) of the RTI Act 2005. Point No. 4, 5 & 6 (Paras 16, 17 & 18): The scope of RTI is not to comment or justify the findings and recommendations. Views expressed by various authorities are in a fiduciary capacity and hence information is exempted under Sec 8 (1)
(e).
Point No. 7 (Para 19): The information sought is exempted under section 8 (1) (e) of the RTI Act.
Point No. 8 (Para 20): The cases are processed on merit and comments and advisory noting by staff Officers are fiduciary in nature are not in public domain, hence are not being 3 provided as it is exempted under section 8 (1) (e) of the RTI Act."
Not satisfied Col. Nargolkar moved an appeal dated 10.6.09 before Chief of Staff HQ Southern Command basing his plea on the following:
"A simple perusal of my appeal reveals that malafide action and serious Procedural Irregularities have indeed occurred in conduct of the Inquiry against me ending in a Censure stopping my declared promotion to Brigadier. These documentarily proved irregularities are given in paras 9-10 of my above said RTI appeal and I am seeking Justice by way of making Staff Officers at HQ southern Command accountable for their deliberate actions of abetting such illegalities actively, or passively by turning a blind eye to them even when the Inquiry and subsequent Statutory Complaint- 5 was processed by them.' This appeal, however, concludes as follows:
"As far as this RTI applications is concerned, I am giving you these details so that you are well aware of the illegalities involved and to persuade you towards and correct legal action more as the COS HQ Southern Command rather than as an Appellate Authority which also carries it's own responsibilities under the RTI Act 2005 and dissuade you from shielding these Staff Officers since Larger Public Interest in disclosing this information outweighs it's non disclosure.' Upon this the Lt. Gen. Ramesh Halgali has, in his speaking order of 4.7.09, found as follows:
"(i) The above stated appeal does not bring out any fresh grounds or reasons to support the appellant's contention with regard to disclosure of the information sought by him in his RTI application dated 08th April 2009. The issues pertaining to the legality, regularity and validity of the proceedings of the C of I and actions thereupon by various authorities in the chain of command cannot be examined and commented upon in an appeal under the RTI Act, 2005.
The scope of RTI Act, 2005 falls within the narrow compass of disclosure of information or exemption there from.
(ii) The information sought by the appellant is exempted under Section 8 (1) (e) of the RTI Act, 2005 being information furnished within a fiduciary relationship. The same has correctly been denied by the PIO while deciding the appellant's application dated 8th April 2009.
(iii) The issues raised by the appellant in the subject appeal go beyond the scope of RTI Act, 2005 and besides lacking 4 merit, these are outside the purview of the said law. Hence, having considering the appeal and the issues raised therein, i, hereby reject the appeal for the above mentioned reasons."
Appellant's prayer before us in his second appeal is as below:
"(i) No Fiduciary Relationship can exist between Public Servants in hierarchy Information be supplied to me since it is not exempt under Fiduciary Relationship clause as claimed by HQ Southern Command.
(ii) Penalty be impose for denying information on frivolous grounds knowing them to be un-sustainable i.e. that a Fiduciary Relationship does not exist between Public Servants in hierarchy, since Army Officers are Public Servants vide IPC Section 21.
(iii) No justification/ reasoning is sought in my RTI Query only information. These reasons given by PIO and Appellate Authority are only with an aim to mislead me.
This practice to gain 60-100 days must be stopped with an exemplary penalty by the Hon'ble CIC."
The issue with respect to this application then becomes the applicability of exemption from disclosure u/s 8(1)(e).
FILE NO. CIC/SM/C/2008/00040 In this case by our decision of 4.12.2008 we had directed as follows:
"Taking the application as a whole and whereas appellant Col. Nargolkar has not thus far availed of recourse to first appeal u/s 19(1), before the Provost Marshal, while the first appellate authority in his letter of 26.8.'08 has also advised Col Nargolkar that, "Information regarding the same may please by sought from the st IHQ of MoD (Army," and whereas the 1 appellate authority has not addressed the questions of appellant, which are of direct concern to his public authority and whereas appellant has pleaded no ground for making a direct complaint to us u/s 18, or apprehension of malafide on the part of the Department, the Commission has decided to remand this appeal to first Appellate Authority, Provost Marshal Adjutant General's Branch, Integrated Headquarter of Ministry of Defence (Army), DHQ PO, New Delhi-110011, who is directed to dispose of the appeal within 15 working days from the date of receipt of this decision, under intimation to Shri PK Shreyaskar, Jt Registrar, Central Information Commission. If not 5 satisfied with the information so provided, appellant Col. A.D. nd Nargolkar will be free to move a fresh 2 appeal before us as per Sec 19 (3) "
Consequently in his decision of 16.1.09 Maj Gen. A. C. Suneja of Army HQ has ordered as follows:
"I find that the PIO at Integrated HQ of MoD (Army) was not obliged to provide information, as the information is denied on grounds of sensitivity as also containing references to a third party under sec. 11(1) of RTI Act, 2005."
This order has followed from the following conclusion :
"And whereas, DDG RTI the PIO at Integrated Headquarters of MoD (Army) vide letter No. A/810027/RTI/2696 dated 29 Jul 2008, had provided the information / details available on the subject."
In accordance with our decision quoted above, Col. Nargolkar has then moved second appeal before us with the following plea :
"Kindly consider granting my following requests for information:
a) My pending 11 queries should be answered.
b) The Discreet Inquiry Report by Military Intelligence be
given to me.
c) I be allowed to peruse File Notings on Stoppage of my
Promotion at all HQs - HQ 41 Arty Divn - HQ 21 Corps - HQ Southern Command - MS Branch at Army HQ.
d) I be allowed to peruse File Notings on subject of Discreet Inquiry by Military Intelligence at HQ Southern Command and Army HQ.,"
FILE NO. CIC/WB/C/2008/00735 In this case through our decision of 4.12.2008, we had directed as follows:
"What this appeal amounts to is a request that we sit in judgment upon whether the decision of the High Court of Judicature of Bombay have been fully complied with or not. This is clearly a task for that Court which has in fact passed the ruling. Although the quest for information is indeed within the jurisdiction of this Commission, when this quest has been met by an order of a judicial Court, even though this were independent of the case before us, it will be moot whether there is any case for interference by this quasi-judicial authority. In our view, there is no such ground. Should appellant Col. Nargolkar feel that the orders of the High Court of 6 Judicature of Bombay stand transgressed, he will have to seek relief from that Court. This complaint is therefore dismissed."
Upon this Col. Nargolkar has moved the following petition dated 5.2.09 before us:
"With the foregoing in view, may I request the Hon'ble Chief Information Commissioner to kindly review his decision in Decision Notice dated 10.12.2008 and pass a fresh Decision Notice directing Army Authorities to supply me the "Opinion" of the Court of Inquiry only, since the "Findings" are already with me."
This is followed with a letter of 3.6.09 by Col. Nargolkar pleading as follows:
"now my 2nd appeal to the CIC has been transferred to Mr. Satyanand Mishra, Information Commissioner.
I hereby request that since your Hon'ble self heard my case in Dec., 2008 the 2nd appeal thereto too be heard by yourself in the interests of continuity and justice."
For this reason all three cases have been transferred to us and heard together on 22.9.2009 by videoconference. The following are present:
APPELLANT at NIC Studio, Bareilly.
Col. A.D. Nargolkar RESPONDENTS at CIC Studio, New Delhi Shri B. B. Mohan, Dir. DV-2 Col. A. K. Vyas, Dir. RTI Shri Raj Pal Singh, SO - DV-1 RESPONDENT at NIC Studio, Pune Lt. Col DV Gokhale Addl Adjutant Gen HQ Southern Command Col. Bishnoi, PIO Southern Command Col. Chopra, PIO Southern Command FILE NO. CIC/LS/A/2009/000951 Addl Adjutant Gen Southern Command submitted that the appeal pertains to the processing of the disciplinary case against Col. Nargolkar. Disclosure of the details sought by him will identify those who have reported against him and this information is exempt from disclosure u/s 8(1)(h) and 8(1)(g). In this context, he submitted that the parties in this process have received threats from appellant Col. Nargolkar and disclosure will serve no public interest. He also cited the 7 decision of this Commission in Shri Ravinder Kumar vs. Union Public Service Commission dated 3.10.06 in File No. CIC/MA/A/2006/00711 (Decision No. 318/IC(A)/2006), in which this Commission has held as follows:
"The information sought relate to note sheets of the files dealing with disciplinary proceedings and imposition of penalty. Under the law, there are established procedures that are followed to ensure justice to the alleged offenders. The relevant details form the basis for formulating advice given by the UPSC to the concerned administrative Ministry, a copy of which is also supplied to the affected officer. The revealing of the note sheets containing the remarks and opinion of various officials on the matter of imposition of penalty, would identify their names, which might endanger their lives. The disclosure of such information is therefore barred u/s 8(1) (e) & (h) of the Act. In view of this, the decision of the appellate authority is upheld."
Addl Adjutant Gen further submitted that the findings of the Court of Enquiry and its decision have already been communicated to appellant Col. Nargolkar. If he has any further grievance in this matter, he is free to challenge the Court of Enquiry u/s 40 of the Army Act and may complain under rule 180 of the Army Rules.
Appellant Col. Nargolkar agreed that the merits of the Court of Enquiry are not the concern of the CIC. However, as per letters cited by him, the Army HQ does indeed have a policy for processing of Court of Enquiry proceedings, no copy of which has been provided to him on his request. Besides, there is now no investigation or prosecution pending against him which could warrant exemption from disclosure u/s 8(1)(h). Since the proceedings are now complete, Col. Nargolkar argued that he has a right to be informed of the details.
FILE NO.CIC/WB/C/2008/00735 In this case Col. Vyas, Director RTI submitted that he had not received a copy of the second appeal of Col. Nargolkar that is before us. He, therefore, sought an adjournment to enable him to prepare his defence. Col. Nargolkar has no objection.
FILE NO. CIC/SM/C/2008/00040 8 In this case it was explained to Col. Nargolkar that this Commission holds no power for reviewing its decision except in a specific matter of error of law or fact. On his part, complainant Col. Nargolkar conceded that he did not wish to press this matter further and accepted the decision of this Commission of 4.12.2008 DECISION NOTICE The hearing in appeal No. FILE NO. CIC/SM/C/2008/00040 is adjourned to 29.10.2009 at 11.00 A.M. With regard to File No. CIC/WB/C/2008/00735, since the review petition of Col. Nargolkar stands withdrawn, his petition of 5.2.09 is hereby dismissed.
In File No. CIC/LS/A/2009/000951, the applicability of exemption from disclosure under Sec. 8(1)(h) is now clearly defined through the ruling of the High Court of Delhi in Bhagat Singh vs. Central Information Commission in WP(C) No. 3114/2007. in which Hon'ble Ravinder Bhat J. has held as follows:
"11. "The Universal Declaration of Human Rights, adopted by the United Nations in 1948, assured by Article 19, everyone the right "to seek, receive and impart information and ideas through any media, regardless of frontiers". In Secretary Ministry of Information and Broadcasting, Govt. of India and others vs. Cricket Association of Bengal and others (1995 (2) SCC 161) the Supreme Court remarket about this right in the following terms:
"The right to freedom of speech and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an "aware" citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizen to arrive at informed judgment on all issues touching them."
This right to information was explicitly held to be our fundamental right under Article 19 (1) (a) of the Constitution of India for the first time by Justice K. K. Mathew in the State of UP vs. Raj Narain, (1975) (4) SCC 428. This view was followed by the Supreme Court on a number of decisions and after public demand, the Right to Information Act, 2005 was enacted and brought into force.
912. The Act is an effectuation of the Right to freedom of speech and expression. In an increasingly knowledge based society, information and access to information holds the key to resources, benefits and distribution of powers. Information, more than any other element, is of critical importance participatory democracy. By one fell stroke, under the Act, the make of procedures and official barriers that had previously impeded information, has been swept aside. The citizen and information seekers have, subject to a few exceptions, an overriding right to be given information on matters in the possession of the state and public agencies that are covered by the Act. As is reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the government's and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.
13. Access to information under Section 3 of the Act is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right self. Under Section 8, exemption from releasing information is granted if it would impede the process of 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. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. 2 Sans this consideration, section 8(1) (h) and other such provisions would become the haven for dodging demands for information."
Clearly the information sought in the present case can under no circumstances be exempted from disclosure u/s 8(1)(h). In any case what has repeatedly been cited as grounds for exemption by the CPIO in the response to points 2 to 8 of the application is only sec. 8(1)(e), which is, therefore, the only issue before us. On Sec. 8(1)(e) there has been a definitive decision of the Delhi High Court in WP (C) 288/2009 dated 2.9.'09; Supreme Court of India vs. Subhash Chandra Agrawal & Ar., in which Hon'ble Ravinder Bhat J. has held that the following relationships can be categorized, as fiduciary:
• "Trustee/ beneficiary (Section 88, Indian Trusts Act, 1882). • Legal guardians/ wards (Section 20, Guardians and wards Act, 1890).2
Emphasised by us for its relevance in present case.
10• Lawyer/ Client.
• Executors and administrators/ legatees and heirs. • Board of directors/ company.
• Liquidator/ company.
• Receivers, trustees in bankruptcy and assignees in insolvency/creditors.
• Doctor/ Patient • Parent/ Child.
On this basis Hon'ble Ravindra Bhat J has in this case expanded on this relationship as below
57. The advanced law Lexicon, 3rd Edition 2005, defines fiduciary relationship as 'a relationship in which one person is under a duty to act for the benefit of the other on the matters within the scope of the relationship.... Fiduciary relationship usually arise in one of the four situations (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act or give advice to another on matters falling within the scope of the relationship, or (4) when there is specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer.'
58. From the above discussion, it may be seen that a fiduciary relationship is one whereby a person places complete confidence in another in regard to a particular transaction or his general affairs or business. The relationship need not be 'formally' or 'legally' ordained, or established, like in the case of a written trust but can be one of moral or personal responsibility, due to the better or superior knowledge or training or superior status of the fiduciary as compared to the one whose affairs he handles.' From the above it will be clear that a fiduciary relationship in the present case could only be pleaded "when one person has a duty to act or give advice to another on matters falling within the scope of the relationship." This could therefore be applicable only against Point No 2 mentioned in Para 14 of the request in which appellant Col Nargolkar has asked for "copies of File Notings of each staff officer in such processing of my court of Inquiry especially by DV, A, MS and JAG Branches of HQ Southern command be allowed to be perused and necessary copies allowed to be taken by me." For the remaining questions there 11 can be no such plea. Consequently, CPIO Southern Command is directed to supply the information sought on all points of the application save point 2 Para 14 within ten working days of the date of receipt of this Decision Notice. On point 2 Para 14 alone the appeal is remanded to appellate authority Lt Gen Ramesh Halgali HQ Southern Command who is directed to reexamine the file in the context of the Decision of Ravindra Bhat J in Supreme Court of India vs. SC Agrawal & Anr. WP(C) 288/2009 pronounced on 2.9.'09 and pass appropriate orders in line with that ruling within fifteen working days of the date of receipt of this Decision Notice. This appeal is therefore allowed in part. There will be no costs.
Reserved in the hearing, this Decision is announced in open chamber on this twenty-fifth day of September 2009Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 25.9.2009 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj Shreyaskar) Joint Registrar 25.9.2009 12