Central Information Commission
Rananjay Pratap Singh vs Chief Commissioner Of Customs, ... on 25 May, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/CCCAZ/A/2022/659482
RANANJAY PRATAP SINGH ......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
DEPUTY COMMISSIONER, CUSTOMS
(PREV.), OFFICE OF THE COMMISSIONER
OF CUSTOMS (PREV.), JAMNAGAR,
RTI CELL, SEEMA SHULKA BHAVAN,
RAJKOT JAMNAGAR HIGHWAY,
JAMNAGAR-361001, GUJARAT. .... ितवादीगण /Respondent
Date of Hearing : 23/05/2023
Date of Decision : 23/05/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 07/08/2022
CPIO replied on : 05/09/2022
First appeal filed on : 11/09/2022
First Appellate Authority order : 19/10/2022
Second Appeal dated : 08/11/2022
Information sought:
The Appellant filed an RTI application dated 07.08.2022 seeking the following information:1
"In order to prevent wastage of Govt. Revenue on stamps/postal expenses and spread of COVID-19. information as requested below may please be provided through soft copies of documents either through Online RTI Portal or over given mail-ID, and in case, soft copies are not readily available, then please provide the certified copies of documents/records in r/o. the desired information as requested herein below:
1. Circular/OM/Instruction of CVC, DoPT or CBIC, if any available which specifically mandates/prescribes the necessity of Vigilance Clearance' of Govt. Servants for disbursement of Reward, already sanctioned. If no such Circular/OM/Instruction of CVC. DoPT or CBIC is available. then please provide the soft copy of entire documents/files/folders of Customs (Preventive), Jamnagar wherein reason. if any, has been recorded in writing for the necessity of Vigilance Clearance' in cases of Reward by the Head of Customs (Preventive), Jamnagar and/or his subordinates.
2. Please provide a soft copy of the paragraph, if any, available in Reward Guidelines, 2015 of CBIC which mandates/prescribes 'Vigilance Clearance' for disbursement of Reward sanctioned to Govt. Servants. If it is not available. then please provide the soft copy of entire documents/files/folders of Customs (Preventive). Jamnagar wherein reason. if any, has been recorded in writing for the necessity of 'Vigilance Clearance' in cases of Reward by the Head of Customs (Preventive). Jamnagar and/or his subordinates.
3. Please inform 'Vigilance Clearance' of which stage viz. booking of case, finalization of case, submission of reward proposal, sanction of reward, disbursement of reward is required and relevant for disbursement of reward to Govt. Servants, as per the Circular/OM/Instruction (if any).
4. Please inform me whether Circular(s)/OM/instruction(s) of CVC, DoPT or CBIC specifically meant for Vigilance Clearance' for other purposes like 'Deputation', 'Empanelment'. 'Promotion' etc. can be made applicable in the case of 'Reward'. If yes, please state which one of these Circular(s)/0M(s)/Instruction(s) can be made applicable and the reasons recorded in writing for selection of such Circular(s)/OM(s)/Instruction(s) by the Head of Customs (Preventive), Jamnagar and/or his subordinates.2
5. Please inform me of the number of cases where 'Vigilance Clearance' has been denied/withheld by the Customs (Preventive), Jamnagar leading to non- disbursement of Reward by DGGI, Ahmedabad Zonal Unit.
6. With reference to Para 6 of the Reward Guidelines, 2015, please state whether Advance/Interim/On the Spot Reward paid to Govt. Servants can be withdrawn, if after finalization of Reward, 'Vigilance Clearance' is denied/withheld due to any subsequent event. If yes, please provide Circular/OM/Instruction (if any) in support of the same.
7. With reference to Para 3.4 of the Reward Guidelines, 2015, please state the eligibility of legal heirs of Govt. Servants & protection of their legal/constitutional rights in the following cases:
(i) Vigilance of Govt. Servant clear but, not communicated to Disbursing Authority.
(ii) Vigilance of Govt. Servant clear at the time of booking & finalization of case but, not at the time of disbursement due to undue & malicious delay in convening of meeting of Reward Committee in contravention of mandate of Reward Guidelines, 2015.
8. With reference to Para 7.2 of the Reward Guidelines, 2015, if the mandatory direction regarding convening of meeting in every Quarter has not been complied with at DGGI, Ahmedabad Zonal Unit, please provide the reasons, if any recorded in writing for denying 'Vigilance Clearance' in 2022 for disbursement of Reward in ripe cases of 2019, due to any subsequent event by the Head of Customs (Preventive), Jamnagar and/or his subordinates.
9. With reference to directions given by the Chairman, CBIC through his D.O. letter dated 09.11.2020 regarding sanction of Reward in all pending ripe cases between 09.11.2020 to 31.12.2020, if the mandatory direction regarding sanction of Rewards in pending ripe cases has not been complied with at DGGI, Ahmedabad Zonal Unit, please provide the reasons, if any recorded in writing for denying 'Vigilance Clearance' in 2022 for disbursement of Reward in ripe cases of 2019, due to any subsequent event by the Head of Customs (Preventive), Jamnagar and/or his subordinates.3
10. Please state whether disbursement of Reward to supervisory officers in cases where Reward of the Investigating Officer (IO) has been withheld due to denial of 'Vigilance Clearance' in r/o. subsequent events is just, proper & legal and qualifies the principles of natural justice & equity. Please state whether such a stand amounts to denial of due benefits for the sincere & hard work of the Investigating Officer (IO) in relation to contribution to Govt. Exchequer. Please provide the copy of Circular/OM/Instruction (if any) for such cases.
11. Please allow inspection of documents/records/files related to or connected with the aforesaid Points 01 to 10 and taking photocopies/print-outs of relevant pages after inspection."
The CPIO furnished a pointwise reply to the appellant on 05.09.2022 stating as under:
"1. Reward Sanction Orders mandate the issuance of Vigilance Clearance for disbursement of Rewords.
2. Same as Para 1 above. Interpretation of guidelines does not fall under the definition of Information under Section 2(f) of the RTI Act, 2005.
3. The information does not fall under the definition of Information under Section 2(f) of the RTI Act, 2005.
4. Interpretation of Circular(s)/0M(s)/Instruction(s) does not fall under the definition of Information under Section 2(f) of the RTI Act, 2005.
5. The information cannot be provided considering the Section 8(1)(j) of the RTI Act, 2005.
6. Interpretation of guidelines does not fall under the definition of Information under Section 2(f) of the RTI Act, 2005.
7. Same as Para 6 above.
8. Interpretation of guidelines and provisions of reason etc. do not fall under the definition of Information under Section 2(f) of the RTI Act, 2005.
9. Same as Para 8 above.4
10. Same as Para 8 above.
11. In view of the reply of Para 1 to 10, this information cannot be provided. Further, permission cannot be granted in light of the Section 8(1)(e) of the RTI Act, 2005."
Being dissatisfied, the appellant filed a First Appeal dated 11.09.2022. FAA's order, dated 19.10.2022, upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal on the ground of alleged incomplete/incorrect and arbitrary response from the CPIO.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video-conference.
Respondent: Represented by Ishan Duggal, Deputy Commissioner present through video-conference.
The Rep. of CPIO invited attention of the bench towards his written submission dated 17.05.2023 wherein he furnished a point wise response to the instant Appeal of the Appellant stating as under -
"...Para 1: It is submitted that reward is purely an ex-gratia payment which, subject to guidelines, may be granted based on the judgment of the authority competent to grant rewards and taking into account facts and circumstances of each case and cannot be claimed by anyone as a matter of right. It is a long-standing practice in the CBIC that the sanctioning authority while sanctioning the reward, subjects the same to vigilance clearance in order to avoid undue benefit to anybody. It is not only a practice of this Commissionerate office but is followed across other Commissionerate's and Directorate of Revenue Intelligence as well.
Therefore, reward sanction orders generally mandate vigilance clearance of such officer to whom the reward has been sanctioned. Hence, the CPIO has correctly replied for the information sought by the appellant. As for as the reasons recorded for such mandate, it is a settled law that the CPIO is not supposed to provide any information or material which is not before him, and the sanctioning authority is also not obliged to give any reasons as to why he had taken such a decision in the matter which was before him.5
Thus, there is no question of casual reply, as alleged by the appellant. 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:
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."
Para 4, Para 6, Para 7, Para 8, Para 9 and Para 10: In the above-mentioned paras, the appellant instead of seeking information under RTI Act, has given various hypothetical situations to the CPIO and has asked him to provide an answer for such cases. Some of the hypothetical questions posed by the appellant are reproduced below for reference:
xxx A simple and plain reading of these questions clearly shows that these are not any specific instances, but hypothetical situations created by the appellant to seek the inference and interpretation of the public authority in order to use the same to his advantage against the reward sanctioning authorities. The appellant could have better sought information pertaining to his case file which would have been provided by the CPIO if the same was available in the office records. Instead the appellant has devised a crooked way of putting things in name of seeking information under the RTI Act, 2005. Thus the information sought by the applicant do not fall within the ambit of 'information' as provided under Section 2(f) of the RTI Act, 2005.
The information sought is purely in the form of opinion / clarification and does not fall within the definition of Section 2(f) of the RTI Act, 2005. When the information sought do not fall under the definition of information, there comes no question of seeking exemption from disclosure of information under the provisions Section 8 or Section 9 of the RTI Act, 2005.
Therefore, it appears that the appellant has miserably failed to appreciate and comprehend the very provisions of the RTI Act, 2005 that he himself has quoted. The CIC and various judicial fora have clearly carved out the difference between information and interpretation under the RTI ACT, 2005.
In the case of Yogesh Kumar vs. CPIO, M/o. Personnel, Public Grievances & Pensions, Department of Personnel & Training, the Appellant sought to know if there is any proposal to implement the MACP w.e.f 01.01.2006 instead of 01.09.2008 as per the 6 judgment of the Hon'ble Supreme Court in Civil Appeal No. 3744 of 2016; if yes, its present position; if not, then the reasons thereof wherein the Commissioner ruled as given below:
The Commission observes from the proceedings during the hearing as well as the perusal of facts on record that the instant matter is not as much about seeking information as much it is about redressing the Appellant's grievance emanating from the non- implementation of the averred MACP scheme. As rightly pointed out by the CPIO, the information sought in the RTI Application does not even conform to Section 2(f) of the RTI Act. In this regard, the attention of the Appellant is drawn towards a judgment of the Hon'ble Supreme Court in the matter of CBSE vs. Aditya Bandopadhyay & Ors [CIVIL APPEAL NO.6454 OF 2011] wherein it was held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of `information' and `right to information' under clauses (f) and (j) of section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the 3 exemptions in section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such nonavailable information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. 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 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." (Emphasis Supplied).
Nonetheless, the CPIO has provided adequate clarifications to the Appellant during the hearing, thus, leaving no further scope of intervention at this stage. Further, the Appellant is advised to await the decision of the appropriate Court of Law for redressing his grievance.
In view of the foregoing observations, the Commission finds the instant Appeal bereft of merit.
From the above judgement of the CIC, it is amply clear that the reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the RTI Act, 2005 refers only to 7 such material available in the records of the public authority and that the public authority is not required to provide 'advice' or 'opinion' to an applicant.
Para 2: The appellant has sought for soft copy of the paragraph in the Reward Guidelines, 2015 which mandated / prescribes 'Vigilance Clearance' for disbursement of reward. As mentioned earlier, the appellant is an officer of Customs working in the same office as that of the CPIO. From the question itself, it is clear that the appellant is having the access to the Reward Guidelines, 2015. Asking for a soft copy of a paragraph of a public document which he is also in possession is nothing but a dirty trick employed by the appellant to get the interpretation of the public authority with a malafide intention to corner the authorities involved in sanctioning of reward to the public servants. Even a layman can understand the intention of the appellant asking for part of the document which he himself has access to. This is nothing less than asking for the inference or interpretation of the CPIO and hence does not fall within the ambit of the definition of information under Section 2(f) of the RTI Act, 2005. As regards providing of documents / files / folders of Customs (Prev.), Jamnagar, it is submitted that the same are confidential and pertains to privacy of many officers.
From the judgement of the CIC discussed above, it is amply clear that the reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the RTI Act, 2005 refers only to such material available in the records of the public authority and that the public authority is not required to provide 'advice' or 'opinion' to an applicant.
Para 3: The information sought i.e., the stages of 'Vigilance clearance' for the purpose of reward is itself an invented concept by the appellant since such stages of Vigilance clearance do not exist on record. Therefore, the information sought is in the form of clarification / interpretation of implementation of 'Vigilance Clearance'. Hence, the same does not fall within the ambit of 'information' as provided under Section 2(f) of the RTI Act, 2005. It is re-iterated that reward sanction order mandates vigilance clearance before disbursement of reward amount to the officer and does not speak anything about the stages of Vigilance clearance.
From the judgement of the CIC discussed above, it is amply clear that the reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the RTI Act, 2005 refers only to such material available in the records of the public authority and that the public authority is not required to provide 'advice' or 'opinion' to an applicant.
Para 5: The information sought is in respect of specific officers of DGGI, Ahmedabad Zonal unit which is exempted from disclosure under Section 8(1)(j) of the RTI Act, 2005. The CIC in the case of Mr. Gopal Kansara, CPIO versus Joint DIT (Vig.) Unit-II, Mumbai & CPIO, O/o. the Directorate of Income Tax (Vigilance), Mumbai relied upon the judgment of the Hon'ble Supreme Court of India in Girish Ramchandra Deshpande vs. Central Information Commission & ors. SLP(C) No. 27734 of 2012 dated 03/10/2012 wherein it was held as under:
8"13......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. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right."
It is clear from the above judgement that the appellant cannot claim the private information of other officers as a matter of right.
Para 11: Most of the information sought by the appellant is hypothetical in nature and is in the form of 'opinion' / 'clarification' of the CPIO, which have not been reduced in writing. Further, the appellant himself is claiming to have the access to the official document i.e., Reward Guidelines, 2015 encompassing the information sought by him. It is not clear as to which documents, the appellant wishes to inspect.
Further, it is also submitted that the records of vigilance section are confidential. The records containing information and documents pertaining all the employees and disclosure of the same would amount to third party information. Hence the same has been rightly denied under Section 8(1)(e) of the RTI Act, 2005 being related to fiduciary relationship.
The Hon'ble CIC in the case of Tinoo Joshi vs Department Of Personnel relied upon the case of Central Board of Secondary Education and Anr. Vs. Aditya Bandopadhyay and Ors wherein the Hon'ble Supreme Court has held that:
"... There are also certain relationships where both the parties have to act in a fiduciary capacity treating the other as the beneficiary. Examples of these are: a partner vis-`-vis another partner and an employer vis-`-vis employee. An employee who comes into possession of business or trade secrets or confidential information relating to the employer in the course of his employment, is expected to act as a fiduciary and cannot disclose it to others."
Further submissions:
I. As stated above, information sought vide Para 3 to 10 of the RTI application is purely in the nature of seeking opinion / clarification / view of the CPIO, which does not fall within the ambit of the RTI Act, 2005. In this regard, there are plethora of cases wherein it is held that a public authority is not required to furnish information which require drawing of interferences and/or making assumptions. It is also not required to provide 'advice' or 'opinion'. Some additional case laws are cited hereunder:9
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."
Hon'ble Central Information Commission in the following cases relied upon the case law of Aditya Bandopadhyay and decision of Hon'ble Supreme Court in the case of Khanapuram Gandaiah Vs. Administrative Officer and dismissed the appeals of the appellants.
i. Javed Ahmed Vs. CPIO, MOHRD ii. Yogesh Kumar vs. CPIO, M/o. Personnel, Public Grievances & Pensions, Department of Personnel & Training iii. Mr. Ashutosh Gautam versus the CPIO, Central Information Commission, Baba Gangnath Marg, Munirka, New Delhi II. It is further submitted that the appellant is employee of the Customs Commissionerate. The information seeker, being an employee of the respondent, is a part of the information provider. Under the RTI, the employees are not expected to question the decisions of the superior officers in the garb of seeking information. In the case of Dr. K.C. Vijayakumaran Nair Vs Department of Post, Hon'ble CIC held as under:
"The information seeker, being an employee of the respondent, is a part of the information provider. Under the RTI, the employees are not expected to question the decisions of the superior officers in the garb of seeking information. Such employees have access to internal mechanisms for redressal of their grievances. Unfortunately, a large number of the government employees are seeking information for promotion of their personal interest. This is done on the pretext of serving the public cause, without 10 realizing the extent of distortions that it causes in use of public resources due to putting up frivolous applications by them for self-interest. This appeal is in no way exception. In the instant case, the information seeker and the provider being part of the same system should work together for evolving approaches to remove irritants in their mutual interaction, as a lot of public resources devoted to provide service to the entire Indian community is thus un-productively used. They ought to exercise restraints in misusing the Act, lest they should dilute the mandate of RTI Act to empower the common man."
Hon'ble Supreme Court of India in Central Board of Secondary Education and Anr. Vs. Aditya Bandopadhyay and Ors, SLP(C) NO. 7526/2009 held as under:
"Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counterproductive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of public authorities prioritising 'information furnishing' at the cost of their normal and regular duties."
Similarly, the Hon'ble Supreme Court in the matter of ICAI vs. Shaunak H. Satya (2011) 8 SCC 781 dated 02.09.2011 had held as under:
"26. We however agree that it is necessary to make a distinction in regard to information intended to bring transparency, to improve accountability and to reduce corruption, falling under Section 4(1)(b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interests, which include efficient operation of public authorities and government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources"
The above said case laws have been relied upon by the Central Information Commission in various cases like Mr. Ashutosh Gautam versus the CPIO, Central Information Commission, New Delhi and Mohan Lal Atarwal vs Kendriya Vidyalaya Sangathan. The 11 Commission has also relied upon the case of Shail Sahni Vs. Sanjeev Kumar & Ors. in W.P.(C) No. 845 of 2014, wherein the Hon'ble Delhi High Court has held that "misuse of the RTI Act has to be appropriately dealt with, otherwise the public would lose faith and confidence in this "sunshine Act". A beneficent Statute, when made a tool for mischief and abuse must be checked in accordance with law."
III. Further, RTI cannot be turned into tool for vendetta by an employee against organization for some grievances. It is also a fact to be noted that a vigilance enquiry has been initiated against the appellant by the Department for various reasons because of which the appellant's transfer to sensitive posts and disbursal of rewards have been affected.
It is in this context that the appellant appears to be involved in acts of intimidating his colleagues and senior officers through various forums like RTI. The present RTI application also appears to be intended to question the process of inquiry initiated against him in the garb of an RTI application. It appears from the information sought, that the appellant has filed the said RTI application seeking advice/opinion/ interpretation of the public authority just to quench his personal vendetta against the Public Authority and to use RTI Act as a tool to intimidate the authorities in his own organization.
In the case of Bidhan Chandra Das v. PIO, Department of Post, the CIC has ruled that:
"g) The RTI Act is meant to promote public interest and publicinterest-based transparency in the administration of public offices; it cannot encourage the attempt to use the RTI to raise such harassing questions to the officers. If this kind of misuse is not checked, and officers will be threatened, demoralized and prevented from proceeding against employees like Mr. B.C. Das facing charges of misconduct.
3. Based on the above contentions, the Commission finds that it is an unscrupulous abuse of RTI by the appellant by filing multiple frivolous RTI applications out of vengeance of being reverted to a lower grade in the Department for no purpose, just for the purpose of harassing the department and colleagues. The officers expressed their agony and sought action against the appellant for causing wastage of time and mental harassment through his filthy remarks and character assassination of the lady officers...
4. Such a conduct in the name of RTI will cause a serious damage to this welfare legislation and embolden the other abusers of office. The Public Authority cannot abdicate its duty to inquire against such allegations of serious misconduct which might have facilitated him to extend the abuse further and also abuse the RTI. Exercising powers under Section 18(2) of RTI Act, the Commission directs the public authority to conduct inquiry against the appellant, former SSPO, on the allegations mentioned above like working on files of the Department illegally after being reverted, use of filthy 12 language and abuse of RTI, and inform the victim officers about action taken on their complaints of sexual harassment, and submit the report of action taken against him within 60 days from the date of receipt of this order.
5. An applicant who has approached the Commission with personal vengeance and who is alleged by colleagues to have abused the position, language and the RTI has no legal right to complain against the CPIO under RTI Act. A malicious complaint like this has no foundation under Section 20 of RTI Act and deserves to be rejected. If the inquiry on these allegations is proved, the appellant officer may have to compensate the damage caused to office and colleagues besides wasting the time of public authorities....."
Per contra, the Appellant vehemently contradicted the above mentioned submissions of the Rep. of CPIO by placing reliance on his latest written submission, relevant extracts of which are as under -
1. All the contents of Reply / WS, except which are matter of record, unless specifically admitted, are misconceived, and hence, denied being false and misleading. The then CPIO, who is supposed to know the provisions of RTI, Act, 2005, is not aware of the basics of following provisions of RTI Act, 2005 that;
i. The malicious statements stated in the opening para (at Page 4 of 17 of WS filed by the then CPIO) of "Point-wise Reply to Grounds of Appeal" stating therein "It is brought to the kind attention of the Commission that the appellant is an employee of the Government of India working under the same Public Authority from whom the information have been sought.
xxx provisions of Section 3 of the RTI Act, 2005 read with law settled by this Hon'ble CIC in its Order dated 14.06.2017 in Second Appeal No. CIC/POSTS/A/2017/130777 titled as Manju v. PIO, Department of Posts (copy attached) wherein this Hon'ble CIC has held as under:"12. These three propositions are baseless. To say that employees are part of holders or generators of information and hence they do not have right to information etc is neither legal nor logical. This amounts to adding a new restriction which was not provided under RTI Act on the right of the employees. How can there be a general proposition that every employer is part of generating or holding or controlling the information and hence he cannot seek it under RTI Act? If the CPIO and public authority sincerely feel so why not they seek the information which they have generated, or are part of holding of that information? In such case there should be no problem in showing their-own generated information.
13. Every Government employee is a citizen first and RTI Act did not exempt the Government Employee from this right. There is no basis for concluding that employee of public authority has no right to information. Being a citizen, employee has equal right to 13 information. As the RTI is part fundamental right guaranteed under Article 19(1)(a) of the Constitution, the RTI cannot be denied to the employee.
14. It is very clear from the provisions of RTI Act and judgments of Hon'ble Supreme Court and High Courts that information request can be rejected only under exceptions mentioned under Sections 8 and 9 of RTI Act. The contention of CPIO and the order cited by him are not based on any of the exceptions in those two sections.
15. The public authority cannot deny this right to information to the employee simply because he was part of public authority. It is also a misplaced proposition that a junior employee cannot question the decision of the senior employee or officer or employer quoting a CIC order in 883/1C(A)/2007 dated 14.06.2007 in Dr. K.C. Vijaykumaran Nair Vs. Department of Posts."
ii. Thus, it is a settled position of law that every citizen, including the Applicant/Appellant, has right to information and applications under provisions of RTI Act, 2005 are filed by the Citizens of India. (Section 3 of the RTI Act, 2005) iii. Filing a Second Appeal is a statutory right of every citizen which has been provided by the Parliament of India. (Section 19 (3) of the RTI Act, 2005) iv. The onus to prove, in any appeal proceeding, that a denial of request was justified is on the CPIO, who denied the request arbitrarily. (Section 19 (5) of the RTI Act, 2005) v. The burden of proving that CPIO acted reasonably and diligently is on the CPIO. (Proviso to Section 20 of the RTI Act, 2005) vi. The CIC is empowered to require the public authority to compensate the Complainant for any loss or other detriment suffered. (Section 19 (8) (a) of the RTI Act, 2005) vii. The CIC is empowered to impose any of the penalties provided under this Act or reject the Application. (Section 19 (8) (b) of RTI Act, 2005) viii. The CIC is empowered to receive complaint from any person w.r.t. act / omission of CPIO / Public Authority, initiate the inquiry as per provisions of Section 18 (2) of RTI Act, 2005 w.r.t. act / omission of CPIO / Public Authority.
ix. The CIC is empowered to impose penalty on CPIO as per provisions of Section 20 (1) of RTI Act, 2005 or / and recommend disciplinary action against CPIO as per provisions of Section 18 (2) of RTI Act, 2005.
x. The CIC is not empowered to take any action against any citizen for filing Application, Complaint, Appeal and Second Appeal under the provisions of the RTI Act, 2005. xi. The incompetence of the then CPIO, is also apparent from the fact that the has not gone through the Preamble of RTI Act, 2005 which justifies the enactment of the RTI Act, 2005 stating, inter alia, therein "The Constitution of India has established democratic Republic and democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed and therefore, it is expedient to provide for furnishing certain information to citizens who desire to have it."
14xii. The CPIO or any other person acting as CPIO / FAA is not the Department. They cannot act as an advocate for any person. They have to act as per mandate and provisions of the RTI Act, 2005. It is apparent from the RTI Act, 2005 that seeking of information by citizen, who is also a responsible public officer, has nothing to do with whimsical observation of the then CPIO who is malafidely alleging that "Applicant/Appellant is attempting to settle personal score against the Department by misusing the RTI Act for his personal interest and vendetta." Aforesaid allegation is nothing, but an attempt to circumvent the core issue by deviating the attention of this Hon'ble Commission. Following facts would clarify the position:
xiii. Section 6 (2) of the Act provides that an Applicant making request for information shall not be required to give any reason for requesting the information. However, it is respectfully submitted that the Applicant/Appellant is not having any personal vendetta against the Department, because the Department is not a person. Exercising the Right to Information by the Applicant/Appellant can by no stretch of imagination be stated as an attempt to settle personal score against the Department for personal vendetta. xiv. The Written Submissions / Reply is not only devoid of any merit, but a compilation of factually incorrect, misleading, malicious and defamatory contents with an intention to malign the image of Applicant/Appellant before the Hon'ble CIC who has nothing to do with citizens filing Applications, Appeals, Complaints under RTI Act, 2005. The malicious conclusion drawn by the then CPIO shows her desperation / and frustration in pointing fingers towards the Applicant/Appellant without even going through the basic provisions of the Act.
2. The information sought at Point Nos. 2, 3, 4, 6, 7, 8, 9 and 10 are well within of definition of 'Information' prescribed in Section 2 (f) of RTI Act, 2005 which reads as under:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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;
3. The information sought at Point Nos. 5 and 11 are not exempted under Section 8 (1) (j) and 8 (1) (e) of the RTI Act, 2005 because:
i. No Vigilance Inquiry has ever been initiated against the Applicant/Appellant, as wrongly and maliciously alleged by CPIO. Issuance of Show Cause Notice is an essential prerequisite of initiation of any Vigilance Inquiry against Government Servants. However, no such Show Cause Notice has ever been served to the Applicant/Appellant till date and a Vigilance Clearance Certificate (copy attached) has also been issued by the competent authority on 24.11.2022 paving way for credit of Rs. 90,000/- as Reward on 04.03.2023. Said certificate has been issued after filing the RTI Application and the CPIO is supposed 15 to know the consequences of making false statements before quasi-judicial authority like Hon'ble CIC.
ii. The information is not relating to personal information of any person, but the information is directly relating to functioning of public authority. The information is directly relating to public activity and interest and it will, by no way cause any unwarranted invasion of the privacy of the individual. The CPIO/FAA failed to examine that larger public interest justifies the disclosure of such information. In addition, it is respectfully submitted that CPIO/FAA failed to examine that the since information sought by the Applicant/Appellant cannot be denied to the Parliament or a State Legislature and for same reason the same cannot be denied to any person, including the Applicant/Appellant herein.
iii. The disclosure of information would not endanger, the life or physical safety of any person and disclosure of information would not identify the source of information or assistance given in confidence for law enforcement or security purposes. iv. It is a settled position of law that CPIO/FAA cannot deny the information by merely citing / referring to provisions of Section 8 of the RTI Act, 2005. They have to justify that the denial of information under any sub-section of Section 8 of the RTI Act, 2005 is just, fair and reasonable. However, the CPIO/FAA miserably failed to do so. The case law relied upon by CPIO are not relevant in the matter as facts of same are distinguishable.
xxx
5. The Applicant/Appellant has nowhere claimed of any privileges of Government Servant for seeking information. The RTI Act, 2005 does not discriminate amongst citizens of India, and creating a separate category of Government Servants only to restrict their rights as citizen & prevent dissemination of information is not at all supported by the Act. Moreover, the subordinate officers of the then CPIO also treat the Applicant/Appellant as an Indian citizen and not any senior/equivalent officer to them as the Applicant/Appellant is always referred by them as 'Gentleman' in all mail correspondences (copy attached). So, the stand taken by the then CPIO to brand the Applicant/Appellant as Government Servant is for the limited purpose of claiming superiority & causing harassment even while dealing with RTI Application.
6. The then CPIO has wrongly alleged the Applicant/Appellant of showing disregard for the functions of the public authority, and disrespect for the Act enacted by the Parliament for use of the expression 'as expeditiously as possible'. In this regard, it may be noted that the said wordings are not the imagination of the Applicant/Appellant, but mandate provided u/S. 7 of the Act itself. The conclusion drawn by the then CPIO shows her desperation in pointing fingers towards the Applicant/Appellant without even going through the Act.
7. The CPIO has wrongly alleged the Applicant/Appellant for invention of concept of stages of Vigilance Clearance. It may be noted that the Reward Guidelines, 2015 itself 16 lay down disbursement of Reward as 'Interim/Advance' and 'Final'. The conclusion drawn by the then CPIO shows her desperation in pointing fingers towards the Applicant/Appellant without even going through the said Guidelines and unnecessarily, quoting the name of Directorate of Revenue Intelligence which is also bound by all the rules & regulations of Government.
8. The then CPIO has wrongly claimed that disbursal of Rewards is subject to Vigilance Clearance as a long practice under Central Board of Indirect Taxes & Customs, and refuted the claim of the Applicant/Appellant of some law behind the same. Reason being, OM dated 01.01.2020 (copy attached) issued by her own Policy Wing i.e. CBIC wherein the conditions for issuance of Vigilance Clearance in several matters including Rewards has been elaborated. In response to a separate RTI Application, the Applicant/Appellant was provided a copy of the said OM on 14.10.2022 by CBIC. It is a matter to ponder as to why the then CPIO didn't take efforts to get the copy of the same or to forward the RTI Application to the concerned CPIO at CBIC u/S. 6 (3) of the RTI Act, 2005. This shows the callous attitude of the then CPIO towards the Act and basic understanding of its provisions.
9. The then CPIO has time & again contended that the Applicant/Appellant is part of information provider and he could have sought information pertaining to his case which would have been provided. The contention of the then CPIO is utterly misleading & far from the truth, as the Applicant/Appellant has submitted a number of Representations to the competent authority for necessary action. No communication in r/o. the said Representations has been received till date.
10. The then CPIO has wrongly alleged the Applicant/Appellant for seeking information just to quench his personal vendetta. Acting upon the Intelligence of the undersigned, a case of nearly Rs. 700 lakhs was not only booked but, due to his persuasive efforts as Investigating Officer, all the amount was recovered as well. Due to recognition of his extraordinary efforts in detection and consequent recovery of huge Government Revenue, a Reward of Rs. 90,000/- was sanctioned, but the same was not getting disbursed. The Applicant/Appellant after submission of a number of Representations over a period of more than 05 months was forced to resort to RTI Act, 2005 to get his due benefits. In fact, it was the vendetta of the then CPIO towards the Applicant/Appellant in playing an instrumental role in denying due benefits to the Appellant. A Representation (copy attached) to this effect was submitted to the competent authority on 17.11.2022.
11. The then CPIO has wrongly alleged of involvement of the Applicant/Appellant in intimidation of his colleagues and senior officers through various forums like RTI. The allegation is totally unfounded, baseless and defamatory in nature. The Commission may 17 itself verify the number of RTI Applications filed by the Applicant/Appellant and the indication towards 'other forum' is ambiguous & malicious.
12. The then CPIO has alleged the Applicant/Appellant of playing dirty tricks to corner the authorities involved in sanctioning of Rewards. Seeking information under RTI Act, 2005 as a citizen to get his due benefits being obstructed without any sufficient, logical & justifiable grounds that too, after making continuous efforts to draw the attention of the authorities towards the plight may not be termed as playing tricks, let alone being described as 'dirty'.
13. Case Laws relied upon by the CPIO are not applicable in the facts of the present case and the one Dr. K.C. Vijaykumaran Nair Vs. Department of Postswhich has been emphatically relied upon by the CPIO has already been overruled by this Hon'ble Commission in Manju v. PIO, Department of Posts in 2017. Similarly, the case of Girish Ramchandra Deshpande vs. Central Information Commission & ors. SLP(C) No. 27734 of 2012 has been discussed in the landmark case of A K Kalra vs. Ministry of Human Resource (Decision No.CIC/RM/A/2014/004365-SA dated 14.02.2017 wherein it has been held that"Compared to an order of division bench of Supreme Court in dismissal of SLP in Girish under Article 136, the decision of the division bench in Writ Appeal in R Rajgopal under Article 141 has binding value as declaration of law." The Hon'ble Supreme Court of India in the case of Khanapuram Gandaiah versus Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 of 2009 has itself held that "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...." In CBSE v. Aditya Bandopadhyay & Ors. (2011) 8 SCC 497, the Hon'ble Supreme Court of India has itself held that "If a public authority has any information in the form of data or analyzed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in Section 8 of the Act...."
Decision:
The Commission upon a perusal of records observes that through the impugned RTI Application the Appellant has sought for humungous information which majorly does not conform to Section 2 (f) of RTI Act and and also appears to be voluminous in nature, collation and compilation of which would entail diversion of manpower resources of the Public Authority and thus, cannot be provided in view of Section 7(9) of RTI Act. The same can be garnered from the relevant provisions of Section 7(9) of RTI Act which is reproduced below for ready reference -18
"...7. Disposal of request.--
xxx (9) An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question..."
It also appears that the Appellant has grossly misconceived the idea of exercising his Right to Information as being absolute and unconditional. It is rather unfortunate that even the best of intentions have to not only stand the test of procedural requirements and fetters laid down in the RTI Act but also stand the test of practicality, a notion well recognised by superior Courts through various judgments such as the Hon'ble Supreme Court's observation in Central Board of Secondary Education (CBSE) & Anr. v. Aditya Bandhopadhyay and others [(2011) 8 SCC 497] stating that:
"37. xxxxx The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising 'information furnishing', at the cost of their normal and regular duties."(Emphasis Supplied)......."
For better understanding of the mandate of the RTI Act, the Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act. For the sake of clarity relevant provision of Section 2(f) of RTI Act is reproduced below:
"Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, 19 circulars, orders, logbooks, contracts, reports, 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;.."
In this regard, the CPIO is in agreement with the citations quoted by the CPIO and would also like to invite Appellant's attention towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it was held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. 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 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." (Emphasis Supplied) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer &Ors. [SLP (CIVIL) NO.34868 OF 2009], the Hon'ble Supreme Court held as under:
"7....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...."
(Emphasis Supplied) And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
20"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.
Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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;
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information." (Emphasis Supplied Nonetheless, upon insistence of the Appellant and as a scope for limited relief, the Commission hereby directs the CPIO to revisit the contents of point no. 5 & 8 and provide relevant available information, free of cost to the Appellant. The said direction should be complied by the CPIO within 15 days from the date of receipt of this order under due intimation to the Commission. Also, the CPIO is strictly cautioned for using any derogatory remarks against the applicants which is against the spirit of RTI Act.
Further, the Appellant is advised to make judicious use of his right to information in future.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) Information Commissioner (सूचना आयु ) 21 Authenticated true copy (अिभ मािणत स यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 22