Central Information Commission
Shri.Madhukar K Farde vs Employees Provident Fund Organisation on 20 August, 2013
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26101592
File No. CIC/BS/A/2012/001056/3264
Hearing Date- 08 August 2013
Decision Date- 20 August 2013
Relevant Facts emerging from the Appeal:
Appellant : Mr. Madhukar K. Farde
C/307, Har Har Mahadev CHS Ltd.
Patil Wadi, Noori Baba Durgah Road,
Thane (West)- 400601
Maharashtra
Respondent : CPIO & RPFC-I(Vigilance)
EPFO
Head Office
14 Bhikaji Cama Place,
New Delhi- 110066
RTI application filed on : 27/02/2012
PIO replied on : 13/04/2012 & 04/01/2013
First appeal filed on : 07/05/2012 & 21/01/2013
First Appellate Authority order : 18/06/2012 & 18/03/2013
Second Appeal received on : 24/07/2012
Information sought:
1- All correspondence made between Regional Commissioner (I) RO Goa to Head Office, AC Karnataka & Goa State, and vice versa for the period from dated 05/10/2010 to up-to-date related to my case and also related with establishment M/s Bharati Industrial Services Pvt. Ltd., M/s Roy & Roy Industrial Services & Accessories Pvt. Ltd and M/s Vidya Industrial Services., Goa.
2- All correspondence made between
(i) Head Office, CVO, New Delhi to CBI, Mumbai/GOA/HQ/CBI Additional Director, New Delhi and Vice Versa and all correspondence received from CBI, Mumbai/GOA/HQ/CBI Additional Director, New Delhi for the period from dated 05/10/2010 to upto-date in related to CBI case of Shri M. K. Farde APFC Goa.
(ii) Head Office, New Delhi or Chief Vigilance Office to Central Vigilance Commission, New Delhi or any other offices of CVC or any other official, offices and vice versa for the period from dated 05/10/2010 to up-to-date in related to CBI case of M. K. Farde, APFC.
(iii) Head Office/CVO to RO GOA, ACC, CBI Goa or any other officials, persons and vice versa related to the case of CBI of M.K.Farde APFC Goa for the period from dated 05/10/2010 to up-to-date.
3- All correspondence made between D. D. Vigilance, Mumbai to RO Goa/CVO/HO, EPFO/CBI Mumbai, Goa and vice versa for the period from dated 05/10/2010 to upto date in related to CBI case of M.K.Farde APFC Goa.
4- Copies of the documents/correspondence/minutes/office notes, submissions, orders or other letters in the file of Shri M. K. Farde APFC Goa in relation to CBI case or if any correspondence related with above case recorded during the visit of CVO in the month of Nov.2010 at RO Goa.
5- Copy of statements recorded by D.D. Vigilance, Mumbai with their officials of Shri Arjun Naik Advocate at Goa on 11th November 2010 or in the month of Nov.2010 or any other statements recorded in related to CBI case of M. K. Farde APFC. 6- Copies of Related file noting, office notes, submission, orders of all sections such as Vigilance section, HO, HRM section HO and any other sections of EPFO New Delhi and other offices in related to the CBI case of M. K. Farde APFC. 7- Copies of the minutes dated 24/12/2010, 30/06/2011, 27/12/2011 of submission review Committee pertain to review of my suspension held at HO. 8- Copies of the minutes of meeting held with official of EPFO and the CVC CBI Officials during the period from 05/10/2010 to up-to-date at their office, CBI office, New Delhi of any other places in related to CBI case of M.K.Farde APFC. 9- Any other correspondence made by EPFO to CBI/CVC/any other agencies and vice-versa in connection with above case during the period from date 05/10/2010 to up-to-date with extract of copies, notings etc. and vice-versa in related with case CBI case of M.K.Farde APFC Goa.
Grounds for the Second Appeal:
The appellant has not received complete information.
Relevant Facts leading to the hearing:
The appellant Mr. Farde sent an e-mail on 22/10/2012 to the Commission, explaining therein the background of his matter that while holding an auction in exercise of his official duty as Recovery Officer, he was attacked and two bullets were fired on him by the defaulter and a case was also filed by the Department against that defaulter. Hence, the appellant requested for an early hearing in his matter. Another e-mail dated 21/11/2012 has been received from him that his life and liberty is still in danger and the information/documents asked vide his RTI application dated 27/02/2012, if received, would be helpful for him to get justice and can save him from this threat to his life and liberty. To confirm the facts and for further discussion a meeting was fixed telephonically with the CPIO Ms. Uma Mandal. During the discussion held with the CPIO Ms. Mandal on 04/12/2012, the abovementioned facts were averred and she also agreed to furnish certain information as sought by the appellant. Hence for the sake of the appellant's life and liberty and in the interest of justice the Commission has decided to take an early action in the matter. In view of this, the Commission issued a notice dated 18/12/2012 directing the CPIO to furnish correct and complete information as sought in the appellant's RTI application dated 27/02/2012 in accordance with the provisions of the RTI Act to him on or before 05/01/2013, with a copy to the Commission after which the Commission will decide the matter accordingly.
In compliance of the Commission's above direction, the CPIO has furnished 29 pages containing certain information related to his RTI application dated 27/02/2012 to the appellant with a copy to the Commission. However, the appellant has informed that information on point nos. 2(i) (ii) (iii), 3, 4, 5, 6, 8 & 9 is still not provided to him.
Relevant Facts emerging during Hearing held on 05/07/2013: The following were present Appellant : Mr. Madhukar K. Farde through VC Respondent: Ms. Uma Mandal CPIO The appellant stated that he has not been provided the complete information in response to his RTI application dated 27/02/2012. He explained that he carried out recovery proceedings against a defaulting establishment in Goa, the total dues whereof were subsequently assessed to more than rupees one crore and that the directors of the company had attacked him for which an FIR was lodged by the department. He contended that he has not been provided the departmental file notings on the basis of which his prosecution was initiated and the report and other correspondences received from the CBI/CVC. The CPIO stated that they have consulted the CBI as per Section 11 of the RTI Act and the agency vide their letter dated 03/08/2012 informed that the case papers/documents of CBI case are confidential documents and exempt under Section 8(1)(g) & (h) of the RTI Act, 2005. She further stated that in response to the letter(s) received from the CVC they have written to them as per Section 11 of the RTI Act but their response is still awaited. As regards the file notings, the CPIO argued that these are recorded in confidence and are sensitive in nature considering that they are recorded for decision making purpose, hence, the confidentiality/anonymity of the person(s) recoding the noting(s) is/are to be maintained. The appellant pleaded that the only information for which he is now pressing for are the relevant order sheets/notesheets/file notings recorded by various functionaries of the department pertaining to the grant of sanction of his prosecution. In support of his contention, the appellant cited two judgments of the Hon'ble Delhi High Court viz. W.P.(C) 6226/2007 (S M Lamba vrs. S C Gupta & Anrs) decided on 04/05/2010 and W.P.(C) 7048/2011 (Sudhiranjan Senapati vrs. UOI and Anrs.) decided on 05/03/2013.
The CPIO requested that the matter may kindly be adjourned to enable them to make written submissions and distinguish the matter at hand from the judgments cited by the appellant.
Interim Decision notice dated 05/07/2013:
As requested by the CPIO it is decided to grant adjournment and invite written submissions from the respondent detailing their stand on the issue at hand. Accordingly, the respondent should furnish their written submissions to the Commission (endorsing a copy to the appellant) by 05/08/2013.
The hearing is adjourned for 08/08/2013 at 4.00 PM Relevant Facts emerging during Hearing on 08/08/2013:
The following were present Appellant: Mr. Madhukar K. Farde through VC (Mob. No. 07208862837) Respondent: Ms. Uma Mandal CPIO The CPIO vide her written submissions dated 05/08/2013 has contended that all information except file notings has been provided to the appellant. In addition to this, the CVC's letter dated 22.02.2011 recording their submission about Section 11 has also been provided to the Appellant. The CPIO opined that information already provided to the appellant is sufficient for him to defend his case. The submissions of the CPIO in the letter dated 05.08.2013 have been noted as under:-
"It is submitted that to deny file-notings exemption has not been claimed u/s 8(1) (h) of the RTI Act. Rather exemption is claimed u/s 8(1) (e) and (g) of the RTI Act, 2005 provisos of which exempt information available to a person in his fiduciary relationship unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; and also exempts from disclosure of such information, the disclosure of 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. It is submitted that confidentiality of note-files is an entirely wholesome principle conducive to good governance. Any compromise with objectivity in processing matters extant in the file is potentially damaging to governance by exposing those entrusted in charge of processing the matter to undue and sometimes, intimidating, scrutiny by interested parties. Anonymity of vigilance officers recording files notes deserves to be protected in their own interest as well as the interest of the system they serve. The public authority is duty bound to protect the interests of its officers who examine through their notings in files the conduct of other employees of the public authority and thereby expose themselves to possible revengeful action by those whose conduct they bring under scanner. Further applying section 10(1) and hiding the names of the authors of the file notings 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 passed as well as the handwriting in which the notes were recorded. Protection needs to be provided to the officers of sensitive department such as the vigilance in performing their duties from the probing eyes of outsiders. Also parting file notings with the applicant serves no public interest as the personal interest of the applicant cannot be equated with public interest.
The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. Hence falls squarely under the dictum of Hon'ble Supreme Court of India judgment in Girish R Deshpande Vs. CIC in special leave petition (Civil) No. 27734 of 2012 @ 14781/2012 dated 03/10/2012.
If the file-noting is provided to the applicant it would affect the fair and free expression of view by the officers who have to analyze the investigation report and evidences on record with the fear that it would be sought for in future and would prejudice the delinquent officers against them, if the noting against the officer being investigated is parted with. In view of the above, provision of Section 8(1) (e) and (g) of the RTI Act is claimed to deny the file notings."
The CPIO stated that the file notings relating to the sanction of prosecution are based on material supplied by the CBI and it will amount to the indirect disclosure of such material. She further stated that in the instant matter she is not relying on Section 8(1) (h) but on Section 8(1) (e) & (g) of the RTI Act for exemption on the grounds brought out in her written submissions as above.
The appellant contested stating that he is seeking information about himself and Section 8(1) (e) comes into play only in respect of information pertaining to a third party; hence the exemption of information being held in fiduciary capacity is not applicable in this case. The Appellant further placed reliance on the Hon'ble Delhi High Court decision in W.P.(C) 7048/2011 (Sudhirranjan Senapati vs. UOI and Anr) contending that the facts whereof are squarely similar to the instant case. The Petitioner in the said case also sought information with regard to sanction accorded qua prosecution of the petitioner. While directing the Respondents to supply information sought for by the petitioner, the Hon'ble High Court in the aforementioned case held that "....the file notings be disclosed after redacting the names of the officers who wrote the notes or made entries in the concerned files to protect their identity...". Thus while dealing with the similar apprehension of the Respondent in the case of Sudhirranjan Senapati, the High Court by its decision has settled the issue. The exemption sought by the Respondent in the instant case under Section 8(1) (g) is also sufficiently addressed by virtue of the same decision. In fact the Appellant upon being enquired during the hearing agreed that in order to set at rest any trepidation in the mind of the respondent he is willing to accept typed copies of the relevant file notings so that no identity can be gauged from the handwriting of the officer/s.
At this point the Commission notes the observation of the Hon'ble Delhi High Court in Col. V K Shad's case decided on 09.11.2012 WP(C) No. 499/2012 wherein decisions of the Apex Court in CBSE vs. Aditya Bandopadhyay and Shaunak Satya were dealt with and based on the said decisions of the Apex Court, the Hon'ble High Court has held as hereunder:
".....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..........................
...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..................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 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....."
Decision Notice:
In the light of the observations of the Apex Court and the Delhi High Court in the above cited cases and the clearly established legal position, the Commission is of the considered opinion that the petitioner in this case seeking information pertaining to the sanction of prosecution against himself cannot be denied the information under principles of natural justice. Considering the respondents' apprehension as reflected in their seeking of exemption under Section 8(1)(g) of the RTI Act, and also the Appellant having so agreed, as noted above, the typed copy of the file notings (with the names of the officers redacted) as sought by the Appellant are directed to be furnished to him within 15 days from the date of receipt of this order.
The appeal is disposed of accordingly.
Basant Seth Information Commissioner Authenticated true copy:
(A.K.Jha) Deputy Secretary and Deputy Registrar