Central Information Commission
Shri O. P. Mehra vs Central Vigilance Commission (Cbi) on 20 October, 2008
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/00643 dated 14.5.2007
Right to Information Act 2005 - Section 19
Appellant - Shri O. P. Mehra;
Respondent - Central Vigilance Commission (CBI)
Facts:
By an application of 4.12.2006 Shri O.P. Mehra of Frazer Road, Ajmer applied to Shri K. L. Ahuja, CPIO and Director CVC requesting the following information:
"1. The copy of recommendation of AM (Vigilance) as well as of GM/NWR, for Shri O. P. Mehra.
2. The file noting and/ or related correspondence on basis of which recommendation of AM (Vigilance) in case of Shri O. P. Mehra was overruled.
3. The reasons for which Para 2.14.1(x), 13 & 14 of vigilance manual, volume-I (http://cvc.nic.in/man04.pdf) of Central Vigilance Commission is not enforced; wherein CO's representation had to be taken on IO's report before forwarding the IO's report to the commission for second stage advise."
In response he received a copy of a letter dated 22.12.06 addressed by CPIO Shri Ahuja to Shri B. L. Meena, Exec. Director (P&G) Railway Board transferring questions 1 & 3 to the Railway Board u/s 6(3) and with regard to Para 2 seeking the clearance of Railway Board as third party, as follows:
"Regarding Para -2 of the application, it is stated that the file notings on the Commission's file analyses the recommendations of the AM (Vigilance), Railway Board. A notice is, therefore, served upon you under Section 11 (1) read with section 11 (2) of the RTI Act to make a submission within 10 days of the issue of this letter whether the information should be disclosed; and to make a representation, if any, against the proposed disclosure."
Appellant Shri Mehra then went in first appeal on 17.1.07 before Shri Balvinder Singh, Addl. Secretary and First Appellate Authority pleading that "Since information is available with the CVC, this information asked vide item-1 of 1 the application, should have been provided by the CVC, instead of referring it to the Railway Board." Shri V. Kannan Addl. Secretary and Appellate Authority in his order of 8.3.07 has found as follows:
"(1) While seeking advice, the Railway Board refers their case files to the Commission through I. D. Notes. The Railway Board's files are returned to them, along with the Commission's advice, through u.o. notes. In the instance case, a photocopy (unauthenticated) of the Railway Board's I. D. Note was retained, which contained recommendations of the AM (Vigilance). The recommendations of the Zonal Railways are not retained. Thus, full information requested against this paragraph was not available with this public authority; and the CPIO transferred this part of the request to the Railway Board for appropriate action, in terms of section 6 (3) of the RTI Act. Section 19 of the RTI Act does not provide for an appeal against the CPIO's decision taken under section 6 (3) ibid. However, there has been delay in transferring a part of the application, as the CPIO was to satisfy himself, before doing so, if the requested information was available with this public authority. The delay on that account is regretted.
(2) Section 11 (1) of the RTI puts an obligation on the CPIO to serve a notice a 'third party', if the information to be disclosed related to, or had been supplied, by that party, if that third party had treated the information as confidential.
Vigilance case files by its nature are confidential, and, therefore, if content of that file were to be disclosed, it was obligatory for the CPIO to serve a notice to the third party. The Central Information Commission, in its decision dated 10.1.2007 on the appeal of Shri Rajinder J. Singh, has observed that disclosure of information relating to a third party is permissible only I it is established that disclosure would be in the larger public interest. The CPIO has since denied information on Para 2 of your letter dated 4.12.2006, vide letter No. CVC/RTI/06/634-49598 dated 26/27.2.2007,and if you are not satisfied with that decision, you may make an appeal to the undersigned.
(3) The Right to Information Act provides a right to the applicants to secure access to information under the control of public authorities, as defined in section 2(f) of the RTI Act. The applicant cannot question the decision of a public authority. The Central Information Commission, in its 2 decision dated 31.5.2006, on the appeal of Shri Pratap Singh Gandas, has held that the RTI Act cannot be used to make a public authority to do certain things or take certain action; it can be invoked only for access to permissible information."
Appellant Shri Mehra has then moved another appeal before Shri Kannan on the following grounds :
"The information was denied to me on the following grounds:-
"The disciplinary authority is yet to take a decision on the commission advice against them, including Shri Mehra."
However, facts are just contrary to this statement. Disciplinary authority had already taken decision on the advice of the commission on 13.12.2006 for Shri Mehra (Annexure-1) and on 1.2.07 for Shri R. N. Meena (Annexure-2). Exoneration of Shri R. K. Chaturvedi was done as early as November 2006.
It is understood that Closer (sic) report of CVC is also issued for all the three above.
In view of above it may be noted, that reasons cited by CPIO, are totally false.
Therefore, please advise CPIO to provide the information under reference at the earliest."
On not receiving a response, appellant Shri Mehra moved his second appeal before us on 3.5.06 with the following prayer :
"Prayer for instructing CPIO/ CVC to give me the information sought.
Relief requested in form of compensation for the delay.
The appeal was heard by video conferencing on 28.10.2008. The following are present:
Appellant at NIC Studio Jabalpur 1 Shri O. P. Mehra Respondents at CIC Studio, New Delhi Shri R. C. Arora, Dy. Secy. (In charge of Railways), CVC 1 Although appellant is resident of Ajmer, he had requested hearing in Jabalpur 3 Shri R.C. Arora, Dy. Secretary, CVC, submitted a copy of an order of 3.5.07 of First Appellate Authority Shri V. Kannan, Addl. Secretary, CVC in which the latter has concluded as follows:
"I find that at this stage disciplinary authority had taken decision on the advice of the Commission in respect of all officers. But this aspect was not raised by you in your original appeal dated 17.1.2007. I also find that the final decision of the disciplinary authority in respect of Shri R. N. Meena was received in the Commission on 20.3.2007 i.e. after the disposal of the appeal dated 8.3.2007. Thus, the decision in respect of Shri R. N. Meena was not available before the CPIO while reply your application vide his letter dated 27.2.2007. However, in view of the changed circumstances, I allow you a copy of Commission's file notings (3 pages), which are also enclosed.
The Para 1 and 3 of your application have been transferred to the Railway Board as the matters contained therein were more closely connected with the affairs of the Railways. You are requested to file an appeal before the appropriate authority of the Railways in case you are not satisfied with the reply of the CPIO of the Railway Board."
Appellant Shri O.P. Mehra on the other hand, while conceding that he had received the answers to his questions stated that the response was unduly delayed. Since the advice, a copy of which was sought under Q. No. 1, was available with the CVC , and a shadow copy of which Shri R.C.Arora conceded in the hearing had been retained by that public authority, this should have been provided together with the answer to Q. No. 3. Moreover, from the information now received appended to the order of 1st appellate authority Shri V. Kannan, Addl. Secretary of 3.5.2007 (quoted above), it is clear that three cases of the officers Shri R. N. Meena, Shri O.P. Mehra and Shri R. K. Chaturvedi had been dealt with separately and, therefore, even if the cases of the two officers other than himself had not been concluded, the extract regarding the information in regard to his case, listed at 3.2 of page 4N of the Note Sheet, could have been supplied under the application of severability u/s 10(1). This also raises suspicion of malafide on the part of the CVC.
4Respondent Shri Arora conceded that there had been a delay in addressing Para 2 of the RTI application in referring this to the third party only on 22.12.06 whereas the law requires a reference u/s 11(1) to third party may be made within 5 days of the receipt of the application, this was sought to be explained by first appellate authority in the first Para of his order of 8.3.07 wherein he has conceded that there had been a delay in transfer which arose from the requirement of the CVC having to satisfy itself regarding whom the information sought was available with. He has moreover expressed regret over this, a sentiment which CPIO shares. However, this cannot become the ground for imposition of penalty.
Shri Arora also cited the decisions of this Commission notably that in appeal No. CIC/WB/A/2006/00853 of 22.8.07; VR Gokhale vs CVC regarding invocation of exemption u/s 8(1)(h) in which this Commission has upheld the authority of the C.V.C. to refuse information u/s 8 (1) sub-section (h) in matters which are under investigation or prosecution.
DECISION NOTICE As conceded by appellant Shri Mehra, he has now received response from the Railway Ministry to his question at Para 1 and from the CVC to the question at Para 2. The question at Para 3 is a request for an opinion, which obviously cannot be provided unless it is held in material form as per the definition of information u/s 2(f). The information sought by appellant under the RTI Act, therefore, having been provided, there can be no further cause of action on this account.
There remains the question of delay in response. In light of the earlier decision of this Commission, notably the case cited by Shri Arora we cannot call into doubt the motives of CPIO, CVC in invoking sec. 8(1)(h) to deny disclosure. However, it was brought to the notice of CPIO, CVC in the hearing 5 that the earlier decisions of this Commission on the subject stand superseded by the definitive ruling of the Delhi High Court. In this case the judgment of Ravindra Bhat J of the Delhi High Court in W.P.(C) No.3114/2007 - Shri Bhagat Singh Vs. Chief Information Commissioner & Ors is of relevance, since it deals with the application of sec. 8(1)(h):
"11. "The Universal Declaration of Human Rights, adopted by the United Nations in 1948, assured by Article 19, everyone the right "to seek, receive and impart information and ideas through any media, regardless of frontiers". In Secretary Ministry of Information and Broadcasting, Govt. of India and others vs. Cricket Association of Bengal and others (1995 (2) SCC 161) the Supreme Court remarket about this right in the following terms:
"The right to freedom of speech and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an "aware" citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizen to arrive at informed judgment on all issues touching them."
This right to information, was explicitly held to be our fundamental right under Article 19 (1) (a) of the Constitution of India for the first time by Justice K. K. Mathew in the State of UP vs. Raj Narain, (1975) (4) SCC 428. This view was followed by the Supreme Court on a number of decisions and after public demand, the Right to Information Act, 2005 was enacted and brought into force.
12. The Act is an effectuation of the Right to freedom of speech and expression. In an increasingly knowledge based society, information and access to information holds the key to resources, benefits and distribution of powers. Information, more than any other element, is of critical importance participatory democracy. By one fell stroke, under the Act, the make of procedures and official barriers that had previously impeded information, has been swept aside. The citizen and information seekers have, subject to a few exceptions, an overriding right to be given information on matters in the possession of the state and public agencies that are covered by the Act. As is reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the government's and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.
613. 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 self. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation process cannot be a ground for refusal of the information, the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, section 8(1) (h) and other such provisions would become the haven for dodging demands for information.
14. A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The Contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms, there is some authority supporting this view (See Nathi Devi vs. Radha Devi Gupta 2005 (2) SCC201, B. R. Kapoor vs. State of Tamil Nadu 2001 (7) SCC 231 and V. Tulasamma vs. Sesha Reddy 1977 (3) SCC 99). Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restrictions on the rights under the Act, which is unwarranted."
A copy of this finding was handed over to respondent Shri Arora in the hearing, to be noted in disposal by CVC of cases of this nature in future.
We however find no contradiction between responses received by Shri Mehra through CVC letter of 26.12.06 and the response to the application of 27.2.07, since the two answers concern different questions not determining the disclosure of information sought in Para 2. Consequent to the above, we cannot, therefore, find reasonable cause for invoking sec. 20(1) against the CPIO CVC in the present appeal.
Announced in the hearing except with regard to penalty, which position has been announced in the open chamber subsequent to the hearing.
7Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 20.10.2008 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj Shreyaskar) Joint Registrar 20.10.2008 8