Central Information Commission
Sanjeev Kumar Chhikara vs Indian Army on 2 February, 2021
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सच ु ना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मु नरका, नई द ल - 110067
Munirka, New Delhi-110067
File no.: CIC/IARMY/A/2019/110901
In the matter of:
Sanjeev Kumar Chhikara
... Appellant
VS
Central Public Information Officer,
Indian Army, RTI Cell, HQ Delhi Area,
Delhi Cantt, New Delhi - 110010
...Respondent
RTI application filed on : 17/09/2018 CPIO replied on : 15/11/2018 First appeal filed on : 04/12/2018 First Appellate Authority order : 11/12/2018 Second Appeal dated : 06/03/2019 Date of Hearing : 01/02/2021 Date of Decision : 01/02/2021 The following were present: Appellant : Present over intra VC
Respondent: Col Ashish Hooda, HQ Delhi Area, Capt. Rustam Singh, Shri Nirmal Singh, all present over intra VC Information Sought:
The appellant has sought the following information:
1. Whether a General Court Martial (GCM) was convened by HQ, Delhi Area vide Convening Order dated 11/12/2017 and its findings and Sentence were promulgated on 06/09/2018 by GOC Delhi Area in respect of the applicant. lf yes, following information/ documents be provided:-
(i) Whether the charge sheet dated 15/12/2017 signed by Offg, GOC, Delhi Area had the mandatory endorsement i.e. "To be tried by General Court Martial"1
(ii) Provide the copy of documents placed before the court, on the court assembly, on 19/12/2017.
2. Whether the Convening Authority can peruse and rely on the evidence contained in the Court of lnquiry (C of l) proceedings along with the S of E for convening the GCM.
3. Provide copy of the findings, recommendations, opinion of the C of I and directions of the competent authority on the C of I proceedings.
4. Whether HQ, Western Command (JAG) vide letter No 51607/CM/JAG/2016 dated 04/07/2016 has advised HQ Delhi Area that the officer be tried by GCM on two charges. Provide copy of the above referred letter along with the copy of the two charges mentioned in the said letter.
5. And other related information.
Grounds for Second Appeal The CPIO did not provide the sought for information.
Submissions made by Appellant and Respondent during Hearing:
The appellant submitted that he is not satisfied with the reply of the CPIO as the desired information was not provided to him.
The CPIO reiterated the contents of his reply dated 15.11.2019 Observations:
From a perusal of the relevant case records, it is noted that even though some information was provided to the appellant, however, the CPIO had denied the information on most of the points while claiming exemption u/s 8(1)(e) of the RTI Act. The High Court and the Commission in a plethora of cases have clarified that once the disciplinary proceedings are over, the information should be provided to the concerned officer.
The Commission would like to quote verbatim the observations made by the Hon'ble High Court in the case of Union of India & Ors Vs Col V K Shad. Relevant paras i.e. 20.2, 20.3 & 20.4 of the judgment are extracted below :- "20.2 The above would show that there are two kinds of relationships.
One, where a fiducial relationship exists, which is applicable to legal relationships between parties, such as guardian and ward, administrator and heirs, executors and beneficiaries of a testamentary succession; while the other springs from a confidential relationship which is pivoted on confidence. In other words, confidence is reposed and exercised. Thus, the 2 term fiduciary applies, it appears, to a person who enjoys peculiar confidence qua other persons. The relationship mandates fair dealing and good faith, not necessarily borne out of a legal obligation. It also permeates to transactions, which are informal in nature. [See words and phrases Permanent Edn. (Vol. 16-A, p. 41) and para 38.3 of the CBSE vs Aditya Bandopadhyay]. As indicated above, the Supreme Court in the very same judgment in paragraph 39 has summed up as to what the term fiduciary would mean.
20.3 In the instant case, what is sought to be argued in sum and substance is that it is a fiducial relation of the latter kind, where the persons generating the note or opinion expects the fiduciary, i.e., the institution, which is the Army, to hold their trust and confidence and not disclose the information to the respondents herein, i.e., Messers V.K. Shad and Ors. If this argument were to be accepted, then the persons, who generate the notes in the file or the opinions, would have to be, in one sense, the beneficiaries of the said information. In an institutional set up, it can hardly be argued that notes on file qua a personnel or an employee of an institution, such as the Army, whether vis-a-vis his performance or his conduct, in any manner, can benefit the person, who generates the note or renders an opinion. As a matter of fact, the person who generates the note or renders an opinion is presumed to be a person who is objective and not conflicted by virtue of his interest in the matter, on which, he is called upon to deliberate. If that position holds, then it can neither be argued nor can it be conceived that notes on file or opinions rendered in an institutional setup by one officer qua the working or conduct of another officer brings forth a fiduciary relationship. It is also not a relationship of the kind where both parties required the other to act in a fiduciary capacity by treating the other as a beneficiary. The examples of such situations are found say in a partnership firm where, each partner acts in fiduciary capacity qua the other partner(s).
20.4 If at all, a fiduciary relationship springs up in such like situation, it would be when a third party seeks information qua the performance or conduct of an employee. The institution, in such a case, which holds the information, would then have to determine as to whether such information ought to be revealed keeping in mind the competing public interest. If public interest so demands, information, even in such a situation, would have to be disclosed, though after taking into account the rights of the individual concerned to whom the information pertains. A denial of access to such information to the information seekers, i.e., the respondents herein, (Messers V.K. Shad & Co.) especially in the circumstances that the said information is used admittedly in coming to the conclusion that the delinquent officers were guilty, and in determining 3 the punishment to be accorded to them, would involve a serious breach of principles of natural justice, as non- communication would entail civil consequences and would render such a decision vulnerable to challenge under Article 14 of the Constitution of India provided information is sought and was not given."
24. It is, thus, the appellant's case that the requested information is not barred from disclosure either under section 8(1)(e) or section 8(1)(h) of the RTI Act."
Adverting to the above mentioned ratio, the CPIO is directed to re-examine the RTI application particularly on such points where the desired information was denied claiming exemption u/s 8(1)(e) of the RTI Act and provide a revised reply to the appellant.
Decision:
In view of the above, the CPIO is directed to provide a revised reply to the appellant on the points mentioned above while take note of the above quoted judgement. This direction is to be complied with within a period of 15 days from the date of receipt of this order under intimation to the Commission.
The appeal is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना)
Information Commissioner (सच
ू ना आयु त)
Authenticated true copy
(अ भ मा णत स या पत त)
A.K. Assija (ऐ.के. असीजा)
Dy. Registrar (उप-पंजीयक)
011- 26182594 /
दनांक / Date
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