Central Information Commission
Mr.Maj Naresh Kaushik vs Ministry Of Defence on 23 August, 2010
CENTRAL INFORMATION COMMISSION
Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066
File No.CIC/LS/A/2010/000862
File No.CIC/LS/A/2010/001041
File No.CIC/LS/A/2010/001040
File No.CIC/LS/A/2010/001039
Dated : 23.8.2010
The matters cited above are called for hearing today dated 23.8.2010. The appellant is not present. However, his Counsels clerk appears before the Commission and requests for adjournment for tomorrow on account of the Counsel's pre-occupation in personal matters. It has, therefore, been decided to hear the appellant's counsel tomorrow dated 24.8.2010 at 1030 hrs. It may be noted that the Army is represented by Col A.K. Vyas, Maj Santosh Vincent & Maj A Srivastava.
2. As scheduled, the hearing is resumed on 24.8.2010. Advocate Mohan Kumar is present. The Army is represented by the officers mentioned above less Maj A Shrivastava.
3. We may mention at the very set that the above cited 04 appeals have been filed by Maj Naresh Kaushik. As they more or less concern the same matter, it has been decided to dispose them of through a common order. We now take up these appeals one by one.
CIC/LS/A/2010/000862
4. Vide RTI application dated 24.12.2009, the appellant had requested for the following information :-
"(a) Whether written permission was sought by 2 Raj RIF in December, 2007 to carryout Photostat cop of Classified Document - "TEWT - Assault Across Canal Obstacle" (said classified document was forwarded to 2 RAJ RIF by 28 Punjab); &
(b) If permission was given then a cop of the said letter be provided."
5. The CPIO had refused to disclose this information u/s 8 of the RTI Act, that is, 'security interest of the State'. The AA had affirmed the decision of CPIO vide order dated 24.2.2010.
6. During the hearing, Advocate Mohan Kumar submits that it is not correct to say that COI has not been completed. According to him, a copy of the COI has already been supplied to the appellant. Besides, it is also his plea that vide letter dated 13.1.2010, the CPIO had refused to disclose this information u/s 8 (1) (a). The public authority has now changed its stance that the COI has not been completed. It is an afterthought. It is also his plea that u/s 27 of the Army Act, 1950, if an officer is aggrieved with any decision of his Commanding Officer, he may complain to the superior officers/Central Government. In the present case, by denial of the requisite information, he is being deprived of his statutory right of knocking at the doors of the superior army authorities officers. He also disputes the premise that disclosure of information is likely to impede the process of investigation in terms of section 8 (1) (h) of the RTI Act. According to him, it would rather facilitate the process of investigation. His final submission is that the appellant is facing COI and the requested information has a vital bearing on the final outcome of the proceedings. Therefore, the requested information is of paramount value to him.
7. Col Vyas would submit that a confidential document was lost from the custody of the appellant regarding which COI is under way and which has not yet been completed. The requested information, therefore, can not be disclosed in terms of section 8 (1) (h) of the RTI Act.
DECISION
8. We note that a confidential document was lost in respect of which COI is underway. 02 RAJ RIF had received this document from 28 Punjab and a copy thereof appears to have been handed over to the appellant. The question being asked by the appellant is whether the competent authority of 02 RAJ RIF had sought written permission to make photo copy of the said document. Adv Mohan Kumar has read out to us the response of the CO of 02 RAJ RIF on this point during his cross examination in COI procedings wherein the latter had stated that he did not recall (whether any such permission was taken). The matter is simple. If any written permission to make a photo copy of the confidential document was taken, it should be disclosed to the appellant. If no such permission was taken, the appellant should be informed accordingly. It is essentially a matter of record. In my view, disclosure of this limited information is not going to impede the process of investigation; rather it is going to assist the investigating process. In the premises, the order of the CPIO is set aside and he is hereby directed to furnish this limited information to the appellant on the basis of the records of 02 RAJ RIF.
CIC/LS/A/2010/001041
9. Vide RTI application dated 21.1.2010, the appellant had requested for the following information :-
"Ref Court of Inquiry on loss of Confd Docu "TEWT-ASLT Across CNL OBST" ordered vide HQ 61 Inf Bde convening order NO 1002/R/GS(PC) dated 25 Oct 2009 in which applicant was Witness No 4. A copy of the Court of Inquiry proceedings be provided."
10. This was responded to it by CPIO vide letter dated 4.2.2010 mentioning therein that copy of the COI proceedings less Findings and Opinion had already been forwarded to the appellant on 2.2.2010 as part of the inquiry proceedings. The AA had reiterated the above position vide order dated 8.3.2010.
11. Maj Vincent would submit that the Findings and Opinion on the COI can not be furnished to the appellant until it is ratified by the competent authority. Hence, this may also be treated as matter under investigation in terms of section 8 (1) (h) of the RTI Act. He, however, add that he will have no objection to provide the entire proceedings once the competent authority has taken a decision.
12. Adv Mohan Kumar does not accept this position. According to him, ratification of the COI proceedings by the competent authority is a statutory requirement and the Findings and the Opinion recorded by the competent authority are different class of documents and it gives the appellant a cause of action. He strongly pleads for copies of the Finding and Opinion for the reason that the COI proceedings have damaged the appellant's character and military reputation inasmuchas Army Rules 150 has already been invoked against him.
DECISION
13. As noted above, a copy of the COI proceedings has already been provided to the appellant. The competent authority has not yet given any decision on the Findings and Opinion. Hence, supply of Findings and Opinion at this stage is premature and disclosure thereof is likely to impede the process of investigation. Hence, the decisions of CPIO and AA are upheld and the appeal is dismissed.
CIC/LS/A/2010/001040
14. Vide RTI application dated 22.12.2009, the appellant had requested for the following information :-
"Who is the disposing authority of Non Statutory Complaint against Annual Confidential Report in respect of Major, the corps cdr of the comd the officer is serving in presently or the corps cdr of the previous comd under whose jurisdiction the action took place."
15. The response of the Military Secretary Branch was communicated to the appellant through letter dated 19.1.2010 by the CPIO. The MS Branch response is extracted below :-
"Non-stat compliant against CR in respect of an offr is to be processed by the Corps HQ under which the offr is serving at the time of submission of the compliant."
16. On appeal, the AA had affirmed the decision of CPIO.
17. It is the say of Col Vyas that complete information has been provided to the appellant and nothing has been held back.
DECISION
18. In my opinion, complete information has already been provided to the appellant. Hence, the appeal is dismissed as infructuous.
CIC/LS/A/2010/001039 19 Vide RTI application dated 29.12.2009, the appellant had sought information on 07 paras regarding disbursement of Daily Sustenance Allowance to PBOR of 02 RAJ RIF from November, 2008 to July 2009 when they were on a United Nation Mission and other allied matters.
20. Vide letter dated 4.2.2009, the CPIO had informed the appellant that the requested information could not be disclosed as the concerned Unit was deployed in the State of J&K where RTI Act, 2005 did not apply. The AA had also taken the same position in his order dated 23.2.2010.
21. During the hearing, Col Vyas submits that the Delhi High Court had earlier given a stay regarding disclosure of information pertaining to the Army units deployed in the State of Jammu & Kashmir. This matter, has now been finally decided by the Delhi High Court vide order dated 28.7.2010.
22. To this, Adv Mohan Kumar would respond that the matter has been decided against the Army authorities inasmuchas the RTI Act, 2005, is very much applicable to the Army units deployed in the State of Jammu & Kashmir. In the premises, he strongly pleads for the disclosure of the requested information.
DECISION
23. I find merit in the submission of Adv Mohan Kumar. As the Delhi High Court has held that RTI Act, 2005, is applicable to the Army Units deployed in the State of Jammu and Kashmir and as the information sought by the appellant does not seem to be covered under the exemption clauses of section 8 (1) of the RTI Act, the orders of the CPIO and AA are set aside and the CPIO is hereby directed to provide para-wise information to the appellant.
24. The order of the Commission may be complied with in 04 weeks.
Sd/-
(M.L. Sharma) Central Information Commissioner 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.
(K.L. Das) Assistant Registrar Address of parties :-
1. Col A.K. Vyas G-6, D-1 Wing, IHQ of MoD (Army), Gate No 4, Sena Bhawan, New Delhi
2. Maj Naresh Kaushik H No ET-8, Officers Mess, HQ 21 Mtn Div, Pin-908421 C/o 56 APO