Central Information Commission
Shri Raj Mangal Prasad vs Department Of Social Welfare, Gnct ... on 6 November, 2008
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2007/00722 dated 15-5-2007
Right to Information Act 2005 - Section 19
Appellant: Shri Raj Mangal Prasad
Respondent: Department of Social Welfare, GNCT Delhi
FACTS
By an application of 22-1-07 Shri Raj Mangal Prasad of Ramesh Park, Delhi applied to the SPIO, Department of Social Welfare, GNCT Delhi seeking the following information:
"Reference is made to the enclosed documents which have been received by us under: The RTI Act, 2005 from Department of Social Welfare, Govt. of Delhi.
In this regard kindly provide following information;
1. The enclosed comparative statement mentions two firms namely Gurukul and Neelkanth. Please provide details of these two firms their addresses, contact numbers, proprietors, registration details etc.
2. Please identify all the officials their names, designations, places of posting at that point of time, who have signed the enclosed comparative statement.
3. Please provide details of items purchased on the basis of this comparative statement the quantity and price paid for the item."
To this he received a reply dated 5-3-07 from Ms. Shashi Kaushal, Jt. Director (Admn.) and SPIO refusing the information sought u/s 8 (j) of the RTI Act 2005. Not satisfied with this response Shri Raj Mangal Prasad moved his first appeal before the 1st Appellate Authority, Department of Social Welfare on the following plea:
"Section 8(j) of the RTI Act does not cover the information sought by the applicant. The SPIO is denying information because it will expose corruption and forgery in procurement of articles in Children Homes. It appears that SPIO is interested in shielding the guilty officials.
Secondly, SPIO has not responded within the prescribed time limit under the provisions of the RTI Act."1
Upon this, the First Appellate Authority Ms. Jayshree Raghuraman, Director, Social Welfare GNCTD, in her letter of 23-4-07, has directed as follows:
"It has been found during the hearing that the related documents are missing and not available in the institution. Concerned District Social Welfare Officer has intimated that files are not traceable. A vigilance enquiry has been ordered to look into the matter and to fix the responsibility on the part of defaulters. Enquiry be completed in five days positively and report submitted.
Besides, some part of the information asked for by the appellant is exempted from disclosure of information u/s 8(j) of Right to Information Act, 2005 as it relates to information of third party which cannot be given."
Appellant has then moved a complaint before us with the following prayer:
"Penalty should be imposed on the SPIO and CIC should recommend for disciplinary action against SPIO under the service rules applicable to him."
He has supported this plea with the following contention :
"Further, this is also a case of destruction of information. Enquiry by their own officials and vigilance branch does not hold any value as all senior officials are well aware of the fact and they have joined hands to protect each other. CIC may not be concerned with these aspects but denial of information on the pretext of section 8(j) of the Act has direct relation with the object of the RTI Act "to promote transparency and accountability in the working of every public authority" which is lacking in the Social Welfare Dept."
The appeal was heard on 6-11-2008. The following are present.
Appellants Shri Raj Mangal Prasad Shri Naval Chauhan.
Respondents Shri B. R. Singh, Jt. Director.
Shri K. K. Bhalla, Sr. Supdt.
Shri B.R. Singh, Jt. Director, Social Welfare submitted that in fact, an interim enquiry report has been received and this is under process. Appellant also submitted a copy of the letter received by him from the Department of 2 Women & Child Development, NCT Delhi dated 11-4-08 sent by Ms. Gitika Sharma, Dy. Director (Vigilance) informing him as follows:
"Please refer to your application ID No. 07 dated 14.3.2008 under RTI Act, 2005.
The information is as under:-
(1) A Preliminary enquiry was conducted by DSWO (N), her report was received and was referred back for certain clarification. A reply has been received ,which is under consideration. 1 (2) As mentioned in (1) above the report is under consideration. (3) As above."
Complainant also submitted that a copy of the enquiry report would be available with respondents since he was carrying the relevant file. This was agreed by respondents who placed the file before us for our perusal. Upon examination we find that there is indeed an enquiry report of 20-4-07 from Ms. Saroj Rawat, District Officer (North) who the Enquiry Officer. However, respondents submitted that this enquiry report has not yet been accepted to which complainant Shri Prasad responded by submitting that the orders of Director, Social Welfare were that the enquiry will be completed within five days and report submitted.
DECISION NOTICE We have examined the enquiry report and its enclosures and find that this answers all the questions raised by appellant Shri Raj Mangal Prasad. The question before us is whether, not having been accepted by the authorising agency thus far, this report of Ms Saroj Rawat can be considered to be complete and hence in the public domain. And if not, whether it will attract exemption u/s 8 (1) sub-section (h) of the RTI Act, 2005.
Respondents have not pleaded Sec 8 (1) (h) in refusing the information sought, but only 8(1) (j) both at the level of SPIO for the entire information sough and at the level of first appellate authority for part of the information. However, in no part of the response from either official have the grounds for 1 Emphasis ours 3 seeking this exemption been stated. It is not enough to plead exemption from the rule of disclosure, which is what the right to information amounts to, by simply citing a particular clause of the Act. In the present case it can hardly be denied that the activity upon which information has been sought, which is details of items purchased on the basis for use in a govt. Department and the quantity and price paid for the item, is indeed a public, not a private activity. Sec 8(1) sub-section (j) is not therefore applicable.
The enquiry in this matter is subsequent to the first appeal and therefore the issue of disclosure of the enquiry report has not been addressed. However, because the report has not been accepted by the competent authority it can be argued that the enquiry is not yet complete and will therefore invite exemption u/s 8 (1) sub-section (h). In this case the judgment of the Delhi High Court in W.P. C No.3114/2007 - Shri Bhagat Singh vs. Chief Information Commissioner & Ors is of relevance, since it deals with the application of sec. 8(1) (h):
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 remarked 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 U.P. 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.
412. 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 power. 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 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, 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. Sans this consideration, Section 8(1) (h) and other such provisions would become the haven for dodging demands for information.
14. Rights based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms, there is some authority supporting this view (See Nathi Devi vs. Radha Devi Gupta 2005(2) SCC201; B. R. Kapoor vs. State of Tamil Nadu 2001 (7) SCC 231 and V. Tulasamma vs. Sesha Reddy 1977(3) SCC 99). Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restrictions on the rights under the Act, which is unwarranted."
In this case the Court took serious notice of the two year delay in releasing of information and the lack of adequate reasoning of the orders of 5 PIO and appellate authority. S Ravinder Bhat J specifically notes, "As held in the preceding part of the judgment ,without a disclosure as to how the investigation process would be hampered by sharing the materials collected till the notices were issued to the assessee, the respondents could not have rejected the request for granting information. The CIC, even after overruling the objection, should not have imposed the condition that information could be disclosed only after recovery was made 2 "
This judgement will apply to both exemption sought without grounds by the respondents u/s 8 (1) sub-sections (j) and (h). In the context of the latter it is worth mentioning that the enquiry report was submitted on 20.4.'07, and has awaited a decision for one and a half years. The judgment quoted above will therefore have a direct bearing particularly since 1st appellate authority had in fact laid down a time limit for its submission, which has been grossly transgressed. And because the findings of the enquiry are grave, these should have received immediate attention, either to establish that they are unfounded or to act upon them, neither of which is the case, leading to the kind of suspicion expressed by appellant Shri Raj Mangal Prasad.. The plea of respondents seeking exemption from disclosure is therefore unsustainable. SPIO Shri BR Singh will provide the copy of the Enquiry Report to appellant Shri Raj Mangal Prasad within ten working days of the date of issue of this Decision Notice.
Reserved in the hearing, this decision is announced in open chamber on the seventh day of November 2008. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 6-11-2008 2 Para 15 of the judgment.6
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 K.P. Shreyaskar) Joint Registrar 6-11-2008 7