Central Information Commission
Chandra Bhushan Sahay vs Coal India Limited on 10 July, 2020
के य सचू ना आयोग
Central Information Commission
बाबा गंगनाथ माग, मु नरका
Baba Gangnath Marg, Munirka
नई द ल , New Delhi - 110067
वतीय अपील सं या / Second Appeal No.:- CIC/CILTD/A/2018/635971-BJ
Mr. Chandra Bhushan Sahay
....अपीलकता/Appellant
VERSUS
बनाम
1. CPIO & General Manager (MP&IR)
Coal India Limited, Premises No. 04
MAR Plot No. AF-III, Action Area-1A
New Town, Rajarhat, Kolkata - 700156
2. Head of Branch (I/c)
Addl. Suptd. of Police, CBI/ACB/Ranchi
CBI, ACB, 2 Booty Road, Ranchi-834008
... तवाद गण /Respondent
Date of Hearing : 09.07.2020
Date of Decision : 10.07.2020
Date of RTI application 17.07.2018
CPIO's response 31.07.2018/
12.10.2018/
12.11.2018
(CBI.ACB-Ranchi
reply)
Date of the First Appeal 08.08.2018
First Appellate Authority's response 27.09.2018/
08.10.2018
Date of diarised receipt of Appeal by the Commission Nil
Page 1 of 7
ORDER
FACTS:
The Appellant vide his RTI application sought information regarding a copy of the draft sanction order for prosecution against him, which was forwarded by CBI to the then Chairman, CIL and authenticated copy of note (note No. CIL/VIG/RC-14(A)/2010(R)/1372 dated 30.12.2011).
The CPIO, CIL, vide its letter dated 31.07.2018 informed the Appellant that the concerned department on 30th July. 2018 had conveyed that the draft sanction order for prosecution provided by CBI is a third party information supplied by DIG, CBI, ACB, Ranchi treating them as confidential, hence consent of the third party for disclosure of the information as per Section 11 (1) of the RTI Act, 2005. The concerned Department had also conveyed that the information sought is exempted u/s 8(1) (h) of the RTI Act, 2005. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 27.09.2018/08.10.2018 stated that on perusal of reply by the Respondent, it reveals that they have taken plea of section 8 (1)
(h) of the RTI Act 2005 and the custodian of the sought document is CBI, Ranchi, therefore, the CPIO, CIL was advised to transfer the RTI request of the Appellant to the PIO, CBI, Ranchi instantly after receipt of the directive. Subsequently, the CPIO, vide its letter dated 12.10.2018 transferred the application u/s 6(3) of the RTI Act, 2005 to the CPIO, O/o the ACB, CBI, Ranchi with a request to reply to the Appellant directly. Thereafter, the Addl. Supdt. of Police, CBI/ACB/Ranchi, vide letter dated 12.11.2018 informed that vide Notification No. F. No. 1/3/2011-R dated 09.06.2011 of Govt. of India, CBI has been placed in the Second Schedule of the Organization in the RTI Act, 2005. Hence, the information sought could not be furnished.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Chandra Bhushan Sahay (GM, Coal India Ltd.) through TC; Respondent: Mr. D. J. Nayak, GM & CPIO, Coal India Ltd., Kolkata and Mr. Madhusudan Rao, GM (Vig.) and Mr. Sudhansu Shekhar, DSP, CBI, Ranchi through VC;
The Appellant reiterated the contents of the RTI application and stated that a copy of the draft sanction order for prosecution against him, which was forwarded by CBI to the then Chairman, CIL, was wrongly denied to him. In support of his contention, he referred to proviso to Section 24(1) of the RTI Act, 2005. It was also informed that he is posted as a General Manager in the Respondent Public Authority and he apprehended that the final prosecution sanction order issued against him had been changed and therefore, he desired to have a copy of the draft sanction order forwarded by CBI to Chairman, CIL. The Appellant further relied on his written submission. The Commission was in receipt of a written submission from the Appellant dated 26.06.2020 wherein while contesting the reply of the CPIO, it was submitted that as the sanction for prosecution had been awarded by the Chairman, CIL based upon the draft sanction order sent by CBI. A copy of sanction order signed by Chairman, CIL, had been provided to him by the Competent Court of Law. Now at this stage, the draft sanction order sent by CBI to Chairman, CIL could not be treated as confidential document/Third party document. It should be treated as a part of document on the basis of which Chairman had signed sanction order against his employee. The Page 2 of 7 Appellant referred to the decision of the Commission in the case of Shankar Kumar Vs. CPIO, CISF, Navy Mumbai, wherein it was held that u/s 24(1) read with Second Schedule of the RTI Act, 2005, CISF has been declared an exempt organization. Hence, provisions of the RTI Act are not applicable to the CISF except when the information pertains to allegation of corruption or human rights violation. He also referred to the quotation of Experts from Economic Times Newspaper as also the observation of the Hon'ble Delhi High Court, in support of his claim. Therefore, it was requested to the Commission to direct the CPIO, CIL to provide him the duly authenticated copy of draft sanction order sent by CBI, Ranchi to Chairman CIL to fulfill the principles of natural justice. He further requested that he resides in Ranchi and considering the spread of COVID-19, it would not be possible for him to attend the hearing on 09.07.2020 from Sasaram.
In its reply, the Respondent, CIL, narrated the background of the case and submitted that in compliance with the direction of the FAA, CIL, RTI application of the Appellant was transferred to PIO, CBI, Ranchi, vide their letter dated 12th October, 2018 which was duly responded by the CBI, Ranchi, vide letter dated 12.11.2018. The Respondent, CBI, Ranchi, stated that the final sanction order for prosecution had been received by the Appellant and the charge-sheet had also been issued as also the investigation is underway, in the matter and therefore, a copy of the draft sanction order could not be provided being confidential document.
The Commission was in receipt of a written submission from the Respondent, CIL, dated
02.07.2020 wherein the chronological sequence of the event was reiterated. The Respondent agreed to forward a copy of the written submission to the Appellant, as well.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... "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."Page 3 of 7
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the 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."
Furthermore, the Hon'ble High Court of Sikkim in the matter of Sancha Bahadur Subba vs. State of Sikkim W.P. (C) 31/2017 dated 30.04.2018 had held as under:
"30. What concludes therefore from the gamut of discussions herein above is that in a given case information pertaining to assets and liabilities can be disclosed with the rider that there must be larger public interest involved justifying such disclosure. As can be culled out from the averments and submissions, the Petitioner herein suspects that the Respondent No. 5 is in possession of assets disproportionate to his known sources of income, however mere suspicion without any prima facie material to substantiate it does not justify the disclosure of such information of the Respondent No. 5 as rests with the concerned government authority. This situation indeed appears to be a fishing expedition embarked upon by the Petitioner without any bona fide public interest. In these circumstances, it obtains that disclosure of such information would cause unwarranted invasion of the privacy of the individual and falls under the ambit of Section 8(1)(j) of the RTI Act."
The Commission also referred to the decision of the Hon'ble High Court of Delhi in the matter of Union of India vs. Shiv Narain, WP(C) 7204/2016 dated 27.03.2019 wherein it was held as under:
"2. The respondent herein sought information from the petitioner on the following two issues:- "1. Whether the report vide letter no. RSVY/CE/CE & PM/55(1) 892 dated 12.02.2013 addressed to Inspector of police, CBI, ACB, Patna by Shri D.S. Kapur CE Page 4 of 7 cum PM RSVY project Zone, CPWD, Patna in connection with the subject referred above was submitted by the CBI before the sanctioning Authority before grant of prosecution sanction. 2. The certified copy of the note sheet of the above mentioned case from the beginning to the issue of prosecution sanction may also be given for which I am ready to pay the requisite fee."
4. Learned counsel for the respondent has fairly drawn my attention to an order 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 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.
6. The learned counsel for the respondent submits that the respondent herein shall have the liberty to seek the document, which he has sought under the RTI Act from the learned Trial Court, in terms of the order of the Supreme Court. Suffice it would be to state that it is for the respondent herein to seek appropriate orders from the learned Trial Court.
In view of the order of the Supreme Court, the order of the CIC dated February 29, 2016 is set aside, the writ petition is allowed."
The Commission observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and to venture into the merits of a case or redressal of grievance. The Commission in a plethora of decisions including Shri Vikram Singh v. Delhi Police, North East District, CIC/SS/A/2011/001615 dated 17.02.2012 Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow CIC/DS/A/2012/000906 dated 06.09.2012, Mr. H. K. Bansal vs. CPIO & GM (OP), MTNL CIC/LS/A/2011/000982/BS/1786 dated 29.01.2013 had held that RTI Act was not the proper law for redressal of grievances/disputes.
Page 5 of 7The Hon'ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 had held as under:
"While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions."
Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. vs. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 held as under:
"6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate forum. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."
Moreover, in a recent decision in Govt. of NCT vs. Rajendra Prasad WP (C) 10676/2016 dated 30.11.2017, the Hon'ble High Court of Delhi had held as under:
6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes.
7. In the present case, it is apparent that CIC had decided issues which were plainly outside the scope of the jurisdiction of CIC under the Act. The limited scope of examination by the CIC was: (i) whether the information sought for by the respondent was provided to him; (ii) if the same was denied, whether such denial was justified; (iii) whether any punitive action was required to be taken against the concerned PIO; and (iv) whether any directions under Section 19(8) were warranted. In addition, the CIC also exercises powers under Section 18 of the Act and also performs certain other functions as expressly provided under various provisions of the Act including Section 25 of the Act. It is plainly not within the jurisdiction of the CIC to examine the dispute as to whether respondent no.2 was entitled to and was allotted a plot of land under the 20-Point Programme.Page 6 of 7
A similar view delineating the scope of the Commission's jurisdiction was also taken by the Hon'ble High Court of Delhi in Sher Singh Rawat vs. Chief Information Commissioner and Ors., W.P. (C) 5220/2017 and CM No. 22184/2017 dated 29.08.2017 and in the matter of Shobha Vijender vs. Chief Information Commissioner W.P. (C) No. 8289/2016 and CM 34297/2016 dated 29.11.2017.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the fact that the CBI investigation was underway in the matter, no further intervention of the Commission is required. For redressal of his grievance, the Appellant is advised to approach an appropriate forum. The Respondent is however, instructed to forward a copy of the written submissions sent to the Commission to the Appellant within a period of 15 days from the date of receipt of this order depending upon the condition for containment of the Corona Virus Pandemic in the Country or through email, as agreed.
The Appeal stands disposed accordingly.
(The order will be posted on the website of the Commission) (Bimal Julka) ( बमल जु का) (Chief Information Commissioner) (मु य सूचना आयु त) Authenticated true copy (अ भ मा णत स या पत त) (K.L. Das) (के.एल.दास) (Dy. Registrar) (उप-पंजीयक) 011-26186535/ [email protected] दनांक / Date: 10.07.2020 Page 7 of 7