Central Information Commission
N Saini vs Central Board Of Direct Taxes on 6 November, 2018
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग
, मुिनरका
Baba Gangnath Marg, Munirka
नई द
ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/CBODT/A/2018/103643-BJ
Mr. N Saini
....अपीलकता
/Appellant
VERSUS
बनाम
CPIO & Additional DIT (Vig.)
Unit - II, Mumbai
Office of the DIT (Vig.)
Western Region, Aayakar Bhawan
M K Road, Mumbai - 400020
... ितवादीगण /Respondent
Date of Hearing : 05.11.2018
Date of Decision : 06.11.2018
Date of RTI application 25.09.2017
CPIO's response 17.10.2017
Date of the First Appeal 30.10.2017
First Appellate Authority's response 23.11.2017
Date of diarized receipt of Appeal by the Commission 17.01.2018
ORDER
FACTS The Appellant vide his RTI application sought information relating to action taken on his letter dated 08.12.2016 and complaint dated 30.07.2016 forwarded by the Central Vigilance Commission to the Respondent Public Authority.
The CPIO, vide its letter dated 17.10.2017 provided a point wise response intimating him that the complaint was processed and the recommendations of the Directorate were sent to the Pr. DGIT (Vig.), New Delhi for necessary action. Further details, if required, could be obtained from the o/o the Pr. DGIT (Vig.) New Delhi. As regards the Complaint dated 30.07.2016, the information was denied u/s 8 (1) (j) while relying on the decision of the Commission in Mr. Manoj Arya (RTI Activist and Social Worker) vs. CPIO. Dissatisfied by the response of CPIO, Appellant approached FAA. The FAA, vide its order dated 23.11.2017 concurred with the response of the CPIO.
HEARING:
Facts emerging during the hearing:
The following were present:Page 1 of 5
Appellant: Mr. N Saini through VC;
Respondent: Dr. K. Gaikwad, Addl. Dir. IT through VC;
The Appellant reiterated the contents of his RTI application and stated that complete and satisfactory response had not been furnished despite the fact that he was a whistleblower in the said matter and acted to prevent money laundering and as a catalyst to recover Government dues. In its reply, the Respondent clarified that the CPIO / FAA had responded suitably in this case. Furthermore, it was articulated that the action against guilty officials was dealt with in accordance with The CCS (CCA) Rules, 1965 and The CCS Conduct Rules, 1984 and that it was an internal matter of the public authority to adjudicate such cases as per extant guidelines. On a query from the Commission whether action taken on such complaints, if found true, against the guilty officials was intimated to the Complainant, it was categorically stated that there was no such policy in this regard. Never had they disseminated any information on the action taken against the guilty officials to the complainant. Internally, the issues were examined and the concerned Vigilance Wing dealt with the matter in conjunction with the CVC instructions. A reference was made to the decision of the CIC in the case of Mr. Manoj Arya (RTI Activist and Social Worker) vs. CPIO and the judgement of the Supreme Court in Girish Ramchandra Deshpande vs. Central Information Commission & ors. SLP(C) No. 27734 of 2012 dated 03/10/2012. Besides this, the attention of the Commission was also drawn to the detailed examination of the case as recorded in the FAAs decision dated 23.11.2017. Contesting the submission of the Respondent, the Appellant drew the attention of the Commission to "The Whistle Blowers Protection Act, 2014" emphasising that he should have been informed of the action taken on his letter because if found true, he could disseminate the information widely and inculcate a sense of confidence amongst other Whistleblowers to contain corruption in the society for which the RTI Act, 2005 was enacted. He specifically desired information on the action taken against the ITO. However, the Respondent maintained his stand as per the response of the CPIO / FAA.
The Commission referred to the definition of information u/s Section 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public Page 2 of 5 authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
As regards, seeking the broad outcome of the complaints filed by the Appellant, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Kamal Bhasin v. Radha Krishna Mathur and Ors., W.P.(C) 7218/2016 dated 01.11.2017 wherein it was held as under:
"6. In the present case, the petitioner stands as a relator party as he is also one of the complainants. The petitioner is not seeking any personal information regarding respondent No. 3, but merely seeks to know the outcome of the complaint made by him and other such complaints. The PFC Officers Association had pointed out certain conduct which according to them was irregular and warranted disciplinary action; thus, they would be certainly entitled to know as to how their complaints have been treated and the results thereof.
7. Section 8 (1) (j) of the Act reads as under:- "8. Exemption from disclosure of information.-(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- xxxxxxxxx (j) information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the Central Information Commission appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information."Page 3 of 5
8. It is apparent from the plain reading of the aforesaid clause that in order to claim exemption from disclosure of any information, the essential conditions that must be satisfied are: (i) that it is personal information the disclosure of which has no relationship to any public activity or interest; or (b) that it would cause unwarranted invasion of the privacy of the individual. However, even if the aforesaid conditions are satisfied, the Central Public Information Officer or the State Public Information Officer or the Appellate Authority may disclose the information if they are satisfied that the larger public interest justifies the disclosure of such information.
9. The proviso of Section 8 (1) of the Act is also important and reads as under: "Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person."
10. By virtue of the aforesaid proviso to Section 8(1) of the Act, it is enacted that information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. In the present case, it was doubtful whether information as to the fate of the complaints can be considered as personal information that has no relationship with public interest or public activity. The activity of the Central Vigilance Department includes investigation and taking action in cases of corruption. Secondly, the complaint related to the allegations of misconduct and how these complaints were treated were clearly matter of public interest.
11 In the circumstances, this Court directs the respondent to disclose to the petitioner as to what action had been taken pursuant to his complaint and other similar complaints made against the then CMD. The petitioner would not be entitled to any notings and deliberations of the Group of Officers or Disciplinary Authority but only information as to what action was taken in relation to the complaints in question."
The Commission also referred to the decision of the Hon'ble High Court of Delhi in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 wherein inter alia information was sought regarding fate of Petitioner's complaint (tax evasion petition) dated 24.09.2003 The Hon'ble High Court after careful examination of the matter had held as under:
"14. In the present case, the orders of the three respondents do not reflect any reasons, why the investigation process would be hampered. The direction of the CIC shows is that the information needs to be released only after the investigation and recovery in complete. Facially, the order supports the petitioner's contention that the claim for exemption made by respondent Nos. 2 and 3 are untenable. Section 8(1)(j) relates only to investigation and prosecution and not to recovery. Recovery in tax matters, in the usual circumstances is a time consuming affair, and to withhold information till that eventuality, after the entire proceedings, despite the ruling that investigations are not hampered by information disclosure, is illogical. The petitioner's grouse against the condition imposed by the CIC is all the more valid since he claims it to be of immense relevance, to defend himself in criminal proceedings. The second and third respondents have not purported to be aggrieved by the order of CIC as far as it directs disclosure of materials; nor have they sought for its review on the ground that the CIC was misled and its reasoning flawed. Therefore, it is too late for them to contend that the impugned order contains an erroneous appreciation of facts. The materials available with them and forming the basis of notice under the Income Tax act is what has to be disclosed to the petitioner, i.e the information seeker.Page 4 of 5
15. As to the issue of whether the investigation has been complete or not, I think that the authorities have not applied their mind about the nature of information sought. As is submitted by the Petitioner, he merely seeks access to the preliminary reports investigation pursuant to which notices under Sections 131, 143(2), 148 of the Income Tax have been issued and not as to the outcome of the investigation and reassessment carried on by the Assessing Officer. 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 assesse, 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.
16. In view of the foregoing discussion the order of the CIC dated 8th May 2006 in so far as it withholds information until tax recovery orders are made, is set aside. The second and third respondents are directed to release the information sought, on the basis of the materials available and collected with them, within two weeks."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission instructs the Respondent to disclose the broad outcome of the complaints filed by the Appellant within a period of 15 days from the date of receipt of this order.
The Appeal stands disposed with the above direction.
Bimal Julka (िबमल जु का)
Information Commissioner (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 06.11.2018
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