Central Information Commission
Shri Raj Singh Kadian vs Border Security Force (Bsf) Ministry Of ... on 7 August, 2009
CENTRAL INFORMATION COMMISSION
Complaint No. CIC/WB/C/2008/0006 dated 14-1-2008
Right to Information Act 2005 - Section 18
Appellant: Shri Raj Singh Kadian
Respondent: Border Security Force (BSF) Ministry of Home Affairs (MHA)
Decision announced: 7.8.2009
FACTS
By an application of 29-11-06 Shri Raj Singh Kadian, Comdt, BSF, Kupwara, J&K applied to the PIO, Shri S.S. Chatrath, DIG, Hq. BSF, Kupwara seeking the following information:
"I request you to arrange for providing me the copies of the note sheets prepared in this case at HQ DG BSF and HQ BSF Shillong Frontier."
He based this request on the allegation that the decisions taken by the Department in the case against him were infringing upon his human rights. In his reply of 10-8-2007 Shri K.G. Keswani, Addl. DIG, (CONFD) of DG, BSF, however, refused the information as below:
"Under Section 24 of RTI Act, 2005 the provision made for providing information to the public do not apply to the intelligence/ security organization, hence, no action can be taken on your application."
Aggrieved by this response Shri Raj Singh Kadian has moved a complaint before us u/s 18 (1) (b) of the RTI Act with the following prayer:
"It is indeed painful to experience the apathetic manner in which the BSF has dealt with my request, showing scant regard to the provisions of the RTI Act, 2005, especially in the light of the fact that on my earlier request the department (i.e. HQ IG BSF Srinagar) vide their letter number 12475 dated 20.11.2006 did provide me the following under the RTI Act, 2005 about the identity of the officer who made me to serve me under the junior officer for no fault of mine.
I pray that the information requested for be provided to me and further appropriate action as deemed fit be taken in this case."
In this complaint Shri Raj Singh Kadian has also submitted as follows:
1"I was compelled to file a Writ Petition (C) No. 19014/06 before the Hon'ble High Court of Delhi. As of now my petition stands admitted and the Hon'ble Court has stayed the action contemplated against me in this show cause notice.
The pendency of the matter doesn't seem to be any ground for the BSF to refuse information to me by pre-texting that the matter is subjudice in the Court of law, as has been done by the BSF in this case.' In response to our appeal notice Shri M.K. Chhabra, DIG (Personnel), BSF has on behalf of DG, BSF submitted detailed comments dated 13-7-09. In this response DIG, BSF has contended as follows:
"(c) In the instant case, the department has not violated any human right as the action taken against Shri R. S. Kadian is as per provisions available under BSF Act & Rules and also based on the evidence available on the record in the General Security Force Court proceedings. Moreover, MHA has also examined the same in detail and conveyed approval of Competent Authority for termination of service of the officer under the provisions made in Rule 20 of BSF Rules.
(d) Moreover, Shri R. S. Kadian was tried by a General Security Force Court on following four charges all under Section 40 of BSF Act:"
From the description of the cases it would appear that the case against Shri Raj Singh Kadian emanated from an alleged action where under Shri Raj Singh Kadian had without authority "ordered No. 77187000 Sub A S Jamwal of his unit to strip off No. 891426026 Constable Mahabir Singh, No. 93133029 Constable Pradip Dey, and No. 970100041 Constable (tailor) Gopal Ram of same unit during roll call by saying that 'SAHEB, IN TEENON KO AAJ ROLL CALL MEIN BAHAR NIKALNA AUR ROLL CALL MEIN SAB KE SAMNE PURA NANGA KARNA, or words to that effect."
On the question of the case before the High Court of Delhi Shri Chhabra has submitted as follows:
"On 26th February, 2007 Hon'ble High Court of Delhi issued direction that the respondents shall be free to pass an appropriate order pursuant to the impugned show cause notice. The same shall not be given effect without the permission of the court.' 2 Consequently, "after considering all the facts and circumstances of the case, legal provision and giving full opportunity, the officer retired from service with pensionary benefits under Rule 20 of the BSF Rules 1969. However, the effect of this order shall remain deferred till permission is granted by the Hon'ble High Court of Delhi in term so fits order dated 26th February, 2007."
Shri Chhabra has, then, concluded his argument as follows:
"The case of Shri R. S. Kadian was dealt as per the provision of BSF Act & Rule and directions issued by MHA being a competent authority. Moreover, the direction/ instructions passed by the Hon'ble High Court from time to time were also complied with."
The complaint was heard on 7-8-2009. The following are present. Complainant Shri Raj Singh Kadian.
Respondents Shri M. K. Chhabra, DIG, BSF.
Shri Vijay Yadav, LOGDC-I Comdt.
Shri K. C. Panda, Asilmin.
DECISION NOTICE Complainant Shri Raj Singh Kadian submitted that in this case the reason why he has made an allegation of human right violation is because he was acquitted by Court Martial and the perjurers who made the false complaint before him bringing him before the Court Martial have been found guilty, yet the BSF has persisted in harassing him and he has been subjected to adverse remarks repeatedly by a senior officer of the BSF.
Shri Vijay Yadav, Comdt. BSF submitted that Shri Raj Singh Kadian has indeed been acquitted by the General Security Force Court but that the DG having considered the action incomplete had proceeded under Rule 20 of the BSF Act as a result of which the matter has also been considered at the level of MHA which has approved the orders of compulsory retirement with pensionary benefits. That order has now been held in abeyance till such time as clearance is received from the Hon'ble High Court of Delhi before whom the Writ is pending.
3Complainant Shri Raj Singh Kadian submitted that the action of the DIG as alleged in his complaint before us in maligning him personally in the file noting, a copy of which he has sought, amounts also to an allegation of corruption. With regard to delay in response, however, Shri Raj Singh Kadian submitted that he had withdrawn his original application of 29-11-06 after discussion with the DIG Shri S.S. Chatrath and only submitted the same to the DG, BSF in June 2007. The initial response, therefore, is within time.
From the above it is clear that Shri Raj Singh Kadian is being proceeded against under the law what he is pleading for his justice, which he has every right to do, but if the action being taken against him is within the framework of the law, even if this is alleged to be unjust that allegation cannot amount to allegation of human right violation. There has been an allegation of corruption at the level of complaint before us, but no such allegation was made in the initial application, which is the application at issue in this complaint.Shri Raj Singh Kadian had already moved the High Court of Delhi through Writ, which is at present under consideration. Any alleged injustice done to him will be remedied there. However, we cannot find any allegation of human rights violation in the case before us that will warrant our interference. This appeal is therefore, dismissed.
Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 7-8-2009 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 7-8-2009 4