Central Information Commission
Mr. O P Mehra vs Union Public Service Commission on 25 July, 2011
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SM/A/2011/000343/SG/13645
Appeal No. CIC/SM/A/2011/000343/SG
Relevant Facts emerging from the Appeal:
Appellant : Mr. O. P. Mehra,
CSTE/C, West Central Railway Headquarters,
1st floor, Annex Building on PF- 4,
Jabalpur- 482001
Respondent : Mr. A. K. Mishra,
CPIO & US,
Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi- 110069
RTI application : 02/08/2010
PIO replied on : 31/08/2010
First Appeal filed on : 06/10/2010
FAA order of : 09/11/2010
Second Appeal filed on : 28/12/2010
Information sought:
Through 40 queries the Appellant sought various information about the basis and reasons for being charged- "He disobeyed the instructions given by his superior officials by refusing to carry out quality inspection of PCs and software with malafide intention to give unintended benefit to the supplier, who had supplied fake, pirated software".
Reply of Public Information Officer (PIO):
"Point (1.1 to 1.8) -- The information sought under these paras, are queries asking for comments/opinion of CPIO regarding the advice given by the Commission, which can not be treated as information under Section 2 (f) of RTI Act, 2005. The CPIO cannot be expected to assume the role of justifying or commenting upon the advice of the Commission nor such comments/justifications on the advice of the Commission will be treated as information under Section 2 (f) of RTI Act, 2005.
Point (1.9 to 1.35,37,39 to 40) -- The information sought in these paras are regarding the observations of the Commission for finalizing the advice. ... .. The Commission, thereafter, consider and take into account all relevant facts, documents/rules etc. before tendering their advice. The Commission, after an independent and fair analysis of the case tenders their advice in an advice letter which is complete, exhaustive and self explanatory. Nothing relevant is left out in advice letter. The complete case records received from the Ministry/DA are returned along with the advice letter. Further, CPIO cannot comments on the queries based on opinion of the applicant.
Point (1.36 & 38) - The information sought relates to note sheets of the files dealing with disciplinary proceedings and imposition of penalty. In this context it is stated that in a similar case on the same issue, UPSC has taken a decision not to provide copies of: note sheet of file and have filed a Writ Petition Page 1 of 4 No.13205/2009 (UPSC Vs CL. Sharma) in Hon'ble High Court of Delhi at New Delhi against the decision of CIC dated 24.82009. Hon'ble High Court has granted interim stay on the operation of decision of CIC. As the subject matter is subjudice, it is regretted that copies of note sheets of files dealing with disciplinary proceedings cannot be provided till the finalization of Writ Petition."
Grounds for First Appeal:
Dissatisfied with the response of the PIO.
Order of the First Appellate Authority (FAA):
"I have perused the records and carefully considered the matter in appeal, and the comments of the CPIO therein. In this regard, it is to mention that the stand taken by the CPIO in the matter appears to be justified."
Grounds for Second Appeal:
Dissatisfied with the order of the FAA.
Relevant Facts emerging during Hearing held on May 27, 2011:
The following were present:
Appellant: Mr. O. P. Mehra;
Respondent: Mr. A. K. Mishra, CPIO & US.
The Commission noted that the Appellant has, through 40 queries in his RTI application, sought variety of information most of which requires the PIO to interpret or clarify several actions. However, the Appellant, on query 36 has sought copy of remarks and on query 38 asked for the file noting and correspondence made by UPSC in the relevant case. The Appellant claimed that this information should be provided to him in view of the decision of the Commission in Appeal No. CIC/WB/A/2009/000197 dated 30/04/2010.
On the other hand, the PIO claimed that file notings of UPSC in such matters were exempted and had been decided earlier in Adjunct to Decision No. 318/IC(A)/2006 dated 10/07/2009, Decision No. 314/IC(A)/2006 of 03/10/2006, CIC/AT/A/2010/000757 of 12/11/2010, 4409/IC(A)/2009 of 01/09/2009 and W. P. (C) 13205/2009.
The order was reserved at the hearing held on 27/05/2011.
Decision announced on 25 July 2011:
The Commission has perused the decision in Appeal No. CIC/WB/A/2009/000197 dated 30/04/2010 cited by the Appellant. The then Chief Information Commissioner held- "Shri Mehra is free to move a fresh application before the UPSC to obtain details of all the information that he had earlier been refused, which now the CPIO, UPSC will be duty bound to supply. The appeal is disposed of accordingly". It follows that the Appellant could file a fresh RTI application to obtain information only on the 19 queries (which was the subject matter before the then Chief Information Commissioner), which had been refused to him initially. However, in the present matter, the Appellant appears to be seeking information on 21 additional queries which may not come within the ambit of the ruling of the then Chief Information Commissioner. In view of the same, the argument of the Appellant is not accepted by this Commission.
Based on the submissions of the parties at the hearing held on 27/05/2011 as well as on perusal of the RTI application, it is clarified that this Commission is concerned only with the information sought in queries 36 and 38 of the RTI application. Further, based on the submissions of the parties and perusal of papers, the issue before the Commission is whether denial of information by the PIO on queries 36 and 38 of the RTI application was legally tenable.Page 2 of 4
It has been legally- established by the Supreme Court of India that the right to information is a fundamental right of the citizens. This fundamental right was codified by the Parliament by way of the RTI Act. Specifically, Section 3 of the RTI Act stipulates that- "Subject to the provisions of this Act, all citizens shall have the right to information". Section 2(j) of the RTI Act defines "right to information" as inter alia the right to information accessible under the RTI Act which is held by or under the control of any public authority. Moreover, in accordance with Section 2(f) of the RTI Act, only information as available on record shall be provided to an applicant.
The RTI Act was enacted with the spirit of ensuring transparency and accountability in the working of every public authority. The RTI Act sets out the practical regime of right to information for citizens to secure access to information under the control of public authorities. Hence, as observed by the High Court of Delhi in CPIO, Supreme Court of India v. S.C. Agarwal W. P. (C) No. 188/2009, the RTI Act is premised on disclosure being the norm, and refusal, the exception. According to the RTI Act, information may be exempted from disclosure in accordance with Section 8 and 9 only and no other exemptions can be claimed while rejecting a demand for disclosure. The High Court of Delhi in Bhagat Singh v. CIC W. P. (C) No. 3114/2007 has held that exemptions in the RTI should be strictly construed. It has held:
"Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself."
It follows from the above that as per the provisions of the RTI Act, information may be exempted from disclosure in accordance with Section 8 and 9 only and no other exemptions can be claimed while rejecting a demand for disclosure.
In the instant case, the PIO, while denying the information in queries 36 and 38 has stated that the Respondent- public authority had filed a Writ Petition bearing number 13205/2009 before the High Court of Delhi against another decision of the Commission dated 24/08/2009. The High Court of Delhi had stayed the said decision of the Commission and since the subject- matter was sub- judice, the information could not be provided. This was subsequently upheld by the FAA in its order.
The Commission noted that as regards queries 36 and 38, the PIO did not claim any specific exemption under Section 8 or 9 of the RTI Act for denying the information sought. Moreover, even at the hearing held before the Commission, the PIO did not base his denial of information on the said queries on Sections 8 and 9 of the RTI Act. Such denial of information is clearly violative of the statutory mandate of the RTI Act. As discussed above, the right to information is a fundamental right and any denial of the same must be in accordance with the provisions laid down in the RTI Act only i.e. Sections 8 and 9. This has not been done by the PIO in the present matter, which has also been erroneously upheld by the FAA. It must be noted that the PIO has neither produced a copy of the Commission's decision dated 24/08/2009 nor the stay order(s) passed by the High Court of Delhi in the said writ petition. However, the Commission has perused the relevant stay order(s). The Supreme Court of India in Shree Chamundi Mopeds Limited v. Church or South India Trust Association AIR 1992 SC 1439, in relation to 'stay of an order' has observed:
"While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence."Page 3 of 4
Given the above, it follows that stay on the order of the Commission dated 24/08/2009 operates in a manner so as to render the latter inoperative from the date of passing of the stay order. The stay order(s) of the High Court of Delhi do not appear to have framed a specific issue for determination and have granted a stay specifically only on the operation of the order of the Commission dated 24/08/2009. No claim for the exemption has been made by the PIO as per the RTI Act. However, the Commission assumes that the PIO is claiming that disclosure of information is exempt since the matter is sub- judice. The only exemption which may relate to matters in court is Section 8(1)(b) of the RTI Act. Section 8(1)
(b) of the RTI Act exempts from disclosure "information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court". From a plain reading of Section 8(1)(b) of the RTI Act, it is clear that it does not include sub- judice matters.
As mentioned above, information may be exempted from disclosure in accordance with Section 8 and 9 only and no other exemptions can be claimed while rejecting a demand for disclosure. Hence, disclosing information on matters which are sub- judice cannot constitute contempt of Court, unless there is a specific order forbidding its disclosure. The mere claim that a matter is sub- judice cannot be used as a reason for denying information under the RTI Act. In view of the same, the Commission rules that the denial of information by the PIO on queries 36 and 38 of the RTI application is legally untenable. Moreover, in view of the observations laid down above, the decisions cited by the PIO are not relevant to the present matter.
The Appeal is allowed. The PIO is directed to provide the information as per records in relation to queries 36 and 38 to the Appellant before 18 August 2011.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi Information Commissioner 25 July 2011 (In any correspondence on this decision, mention the complete decision number.)(KA) Page 4 of 4