Central Information Commission
Babita Kapil vs Department Of Posts on 5 October, 2018
CENTRAL INFORMATION COMMISSION
(Room No.313, CIC Bhawan, Baba Gangnath Marg, Munirka, New Delhi-110067)
Before Prof. M. Sridhar Acharyulu (Madabhushi Sridhar), CIC
CIC/POSTS/A/2017/155917
Babita Kapil v. PIO, Department of Posts
Order Sheet: RTI filed on 04.03.2017, CPIO replied on 31.03.2017, FAO on 02.06.2017, Second
appeal filed on 05.08.2017, Hearing on 24.05.2018;
Proceedings on 05.04.2018: Appellant present, Public Authority represented by CPIO. Mr B.P.
Tripathy.Directions for compliance and Show-cause issued on 09.04.2018.
Proceedings on 24.05.2018: Appellant absent, Public Authority absent. Directions issued on
21.06.2018 and posted on 23.07.2018
Proceedings on 23.07.2018: Appellant absent, Public Authority represente by Mr. Manjeet J.
Singh, the then CPIO and Mr. Deepak Sharma, Inspector of Posts from NIC Saharanpur/Bareilly;
Date of Decision - 04.10.2018: Penalty dropped, directions issued and disposed of.
ORDER
FACTS:
1. The appellant sought the certified copy of noting of the related file from which she had been issued charge sheet under Rule-14 of CCS (CCA) Rules, 1965. The CPIO replied on 31.03.2017 that the information could not be disclosed under section 8 (1) (h) of RTI Act. Vide order dated 02.06.2017, the Appellate Authority upheld the response of CPIO.
2. The Commission's order dated 09.04.2018:
2. The appellant alleged that when she applied for resignation, it was rejected without any reason and she was accused of not seeking prior permission from the concerned authorities before submitting her resignation application. The Department initiated inquiry into her resignation and provided the copy of chargesheet to the appellant.The appellant submitted that the complete file notings from the inquiry file was denied to her on the ground that the inquiry had not been completed.
3. Mr. B.P. Tripathy, CPIO submitted that he joined as PIO on 15.05.2017 and the concerned CPIO on 04.03.2017 who replied to the RTI application was Ms. Manjeet J. Singh.
4. The Commission finds that the CPIO has illegally denied the information sought as the appellant has sought documents related to the matter in which she has been issued chargesheet. The documents have not been supplied to her till date thought the inquiry has been completed. Mr. B.P. Tripathy, CPIO is directed to provide certified copies of all file notings sought along with inquiry report, within ten days.
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5. The CPIO has not cited any reason or explained how the disclosure of fie notings sought by appellant would impede the investigation. The CPIO has a duty to examine whether disclosure of those files impede the process of the inquiry/investigation or prosecution. If it is established that the disclosure has an effect of impeding the investigation or prosecution, then only the information sought is exempted from disclosure under Section 8(1) (h) of RTI Act. The PIO did not discharge this burden. He did not advance anything to show that disclosure of information sought would hamper the investigation process.
6. The Public Authority must raise the quintessential question before invoking section 8 (1) (h); whether the disclosure of the information sought by the Petitioner to the extent not supplied to him yet would "impede the investigation"
in terms of Section 8 (1) (h) RTI Act? It has been held in the case of B. S. Mathur v/s Public Information Officer of Delhi High Court in W.P.(C) no. 295/2011 decided on 03.06.2011, the Hon'ble High Court of Delhi held that:
"The scheme of the RTI Act, its objects CIC/POSTS/A/2017/130860 and reasons indicate that disclosure of information is the rule and non- disclosure the exception. A public authority which seeks to withhold information available with it has to show that the information sought is of the nature specified in Section 8 RTI Act. As regards Section 8 (1)
(h) RTI Act, which is the only provision invoked by the Respondent to deny the Petitioner the information sought by him, it will have to be shown by the public authority that the information sought "would impede the process of investigation. The mere reproducing of the wording of the statute would not be sufficient when recourse is had to Section 8 (1) (h) RTI Act. The burden is on the public authority to show in what manner the disclosure of such information would "impede‟ the investigation."
7. The Commission directs Ms. Manjeet J. Singh, CPIO as on 04.03.2017, to show-cause why maximum penalty should not be imposed upon her for illegally denying the information sought. Ms. Manjeet Singh is directed to submit her explanation, before 24.05.2018 and the matter is posted for penalty and compliance proceedings on the aforesaid date.
3. The Commission's Order dated 21.06.2018:
3. Both the parties absent. The Commission provides one more opportunity to the respondent authority to submit their written explanation on or before 23.07.2018, failing which the matter will be heard and decided in their absence on 23.07.2018."
DECISION:
4. The CPIO/SSPO of Saharanpur Division vide their letter dated 16.04.2018, explained as under:
"...it is submitted that the photocopies of all the related file notings have been provided to the applicant Smt. Babita Kapil on 16.04.2018. It is also submitted that the inquiry report has not yet been received in this office from the inquiry officer.
CIC/POSTS/A/2017/155917 Page 2 It is further submitted that a copy of the order has also been sent to Smt. Manjeet.J.Singh the then CPIO and now ADPS O/o the Postmaster General, Bareilly Region, Bareilly for information and to submit compliance of the orders."
5. Smt. Manjeet J Singh, ADPS, O/o The Postmaster General, Bareilly Region, Bareilly in her written submissionsdated 16.05.2018, explained as under:
"With reference to the show-cause notice issued to me vide your order under reference, detailed response in the matter is submitted as below:
1. The appellant tendered her resignation to the then SSPOs Saharanpur on 10.10.2015. The official, without acceptance of the same, joined the education department of Uttar Pradesh and thereafter applied for "leave without pay" at the Department of Posts, thereby holding two posts in govt.
service in violation of the CCS (Conduct) Rules and other rules of the Department of Posts.
2. The matter had come into light upon receipt of complaint of Sh. V.K. Tomar.
3. The appellant was then issued charge sheet dated 28.12.2016 under the Rule 14 of CCS(CCA) Rules,1965 for holding of two govt. posts at the same time which is violation of CCS (Conduct) Rules 1964 and unauthorized absence. The appellant was not issued charge sheet for "not seeking prior permission from the concerned authorities before submitting her resignation application"
as alleged by the appellant.
4. The appellant, then, during the pendency of the disciplinary proceedings, submitted an RTI Application dated 04.03.2017 seeking copies of note sheets related to the filing of the charge sheet. Since disciplinary proceedings under Rule 14 of CCS (CCA) Rules, 1965 were under process at the time, and the note sheets desired by the applicant contained the name of the complainant on the basis of whose complaint the matter had come to light, providing the copies of the note sheets would not only have materially impeded the process of investigation, but also potentially exposed the safety of the complainant to the risk.
5. It is submitted that in Indirect Tax Practitioners Association vs. R K Jain,(1010) 8 SCC 281, the Hon'ble Supreme Court held that:
"A whistleblower is a person who raises a concern about the wrongdoing occurring in an organization or body of people. Usually this person would be from that same organization. The revealed misconduct may be classified in many ways: for example, a violation of a law, rule, regulation and/ or a direct threat to public interest, such as fraud, health/ safety violation and corruption. Whistleblowers may make their allegations internally (for example, to other people within the accused organization) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues)."
This Commission in CIC/SA//A/2015/000847 &802 has held:
"Inspite of several instances of killing whistle blowers, a legislation being passed to secure the name, and Supreme Court's order not to reveal the name of the complainant to the accused, the name of whistleblower /appellant is revealed to the officer complained against this case.... The public authorities should have avoided this."
It is thus clear that providing copies of note sheets to the applicant would have been against the letter and spirit of the whistleblowers Protection Act, CIC/POSTS/A/2017/155917 Page 3 2011 and orders of the Honorable Supreme Court and this commission as referred above.
6. It is submitted that this commission has already held in case nos. CIC/AT/A/2007/00007, CIC/AT/A/2007/00010 and CIC/AT/A/2007/00011 dated 10.07.2007:
"17. ... ..the term 'investigation' used in Section 8(1) (h), in the context of this Act should be interpreted broadly and liberally. We cannot import into RTI Act the technical definition of 'investigation' one finds in Criminal Law. Here, the investigation would mean all actions of law enforcement, disciplinary proceedings, enquiries, adjudications and so on. Logically, no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken. In that sense, an investigation can be an extended investigation........the respondents are, therefore, right in holding that it would be a misnomer to hold that investigation in matters such as this, the moment the Investigating Officer submits his report to the competent authority spells the end of investigation."
This commission has further observed in the case of GovindJha v. Army HQs, CIC/AT/A/2006/00039 dated 01.06.2006:
"Although the rules of disciplinary proceedings provide for disclosure of all documents and information which constitute the basis for the disciplinary action against an employee, yet such employees demand additional information pertaining to them through the RTI Act. These demands are mostly about disclosure of file-notings and other materials which otherwise would not be available to the employee under the Disciplinary Proceedings Rules. It has been the consistent position of the commission that a disciplinary enquiry assumes the characteristics of an ongoing investigation and the material thereof cannot be disclosed under Section 8(1) (h) of the RTI Act."
Furthermore, this commission in the case of Shri P.K. Saha v. Shri D.B. Janotkar, GM (A&EE) &PIO, Mahanadi Coalfields Limited, CIC/AT/A/2007/00333 dated 17.08.2007, has observed:
"When a specific law lays down the scope and the range of information to be disclosed to a person facing specified action at the hands of a public authority, it will be a sure interference with the process of investigation under that specific law if the affected person, or anybody else in his place, is allowed under the RTI Act to access a larger range of information than would be otherwise authorized." The commission had also observed that information pertaining to the disciplinary proceedings should not be disclosed and the reason why such disclosures should not be encouraged is governance.
7. It is further submitted that sub-rule 2 of Rule 14 of CCS (CCA) Rules, 1965 provides for an appointment of an inquiring authority to inquire into the allegations of misconduct against a government servant. Sub-rule 12 of the said rule further provides for, upon the request of the official, discovery or production of documents which are in possession of the govt. but are not referred to in the charge sheet. Sub-rule 12 also allows Inquiring Authority to deny access to documents, if, in its opinion, the requested documents are not relevant to the case. Thus, it is clear that CCS (CCA) Rules clearly lay down "the scope and range of information to be disclosed" as being the satisfaction of the inquiring authority to the relevance of the documents to the case. Instructions issued vide Department of Personnel and Administrative Reforms OM No. 35014/1/76 -Estt. (A) dated 29th July 1976 also hold that "unless it is unavoidable.... The Disciplinary Authority should refrain from being the Inquiry Officer and appoint another officer for the purpose." It is thus clear that the decision to allow documents during the course of disciplinary proceedings vests with the Inquiring Authority and not with the CIC/POSTS/A/2017/155917 Page 4 disciplinary authority, which is also the CPIO in this case. It thus follows that affording access to documents related to disciplinary proceedings while at the same time appointing an inquiring authority in the case would be tantamount to the disciplinary authority itself acting as/overriding the judgment and authority of the inquiring authority, thus vitiating the impartiality of the disciplinary proceedings.
8. Thus, keeping in view the fact that the documents requested contained personal details of the whistleblower, were related to ongoing departmental proceedings, and providing the same would have not only vitiated the impartiality of the disciplinary proceedings already initiated against the applicant/appellant, but also could have jeopardized the safety of the whistleblower, the same were denied under section 8(1) (h) of RTI Act.
9. At last, I wish to submit that the action was taken by me in good faith and I apologize to the Hon'ble CIC for the same.
5. The CPIO/SSPO of Saharanpur Division, Saharanpur in his written submissions dated 23.07.2018, explained as under:
"This is in continuation of this office letter of even number dated 11.07.2018, it is submitted that in compliance of CIC order dated 09.04.2018 the photocopies of all the related file notings were provided to the applicant Smt. Babita Kapil on 16.04.2018. Only the inquiry report could not be supplied to the applicant as the Hon'ble CAT Allahabad vide order dated 28.04.2017 has restrained this office from taking any further decision in the matter".
6. The Commission upon perusal of records and hearing the submissions of both the parties finds that sufficient information is provided and there is no reason for further intervention. The explanation of the CPIO is satisfactory, hence penalty proceedings are dropped. Disposed of.
SD/-
(M.Sridhar Acharyulu)
Central Information Commissioner
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