Central Information Commission
Shashi Shekhar vs Department Of Revenue on 7 August, 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/DOREV/A/2022/138225
Shashi Shekhar ......अपीलकता /Appellant
VERSUS
बनाम
1. CPIO,
DEPTT. OF REVENUE, ROOM NO.
269-B, RTI CELL, NORTH BLOCK,
NEW DELHI-110001.
2. CPIO,
CENTRAL BUREAU OF
INVESTIGATGION, RTI CELL, DR.
SK SINGH PATH, BAILEY ROAD,
PATNA-800022.
3. CPIO,
ENFORCEMENT DIRECTORATE, RTI
CELL, PARVARTAN BHAWAN, APJ
ABDUL KALAM ROAD, NEW DELHI-110011. .... ितवादीगण /Respondent(s)
Date of Hearing : 18/07/2023
Date of Decision : 04/08/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 06/04/2022
CPIO replied on : 02/05/2022
First appeal filed on : 04/06/2022
First Appellate Authority order : 01/07/2022
2nd Appeal/Complaint dated : 03/08/2022
1
Information sought:
The Appellant filed an RTI application dated 06.04.2022 seeking the following information related to his representation dated 25.04.2019 and its reminder dated 19.07.2019:-
a. " On what date sanction has been granted in the case filed by the CBI vide Spl. Case No. 5/2017 pending respect of the FIR No. 023201A0015 has been registered in CBI, ACB, Patna on 23.08.2017 U/s. 120B IPC & 7, 12, 13 (2) r/w 13(i)(d) of the PC Act, 1988 against the applicant.
b. On what date charge-sheet has been submitted before the before Spl. Judge, CBI-III, Patna in Spl. Case No. 5/2017.
c. Copies of note-sheets of Ministry File No. C-14011/2/2019-Ad.ED since inception till date;
d. Copies of correspondence with other offices/ agencies on the subject matter;
e. Whether my pay has been fixed for purposes of services.
f. What was my fixed pay in 2017, 2018 and 2019?
g. Copy of recruitment rules as applicable to Assistant Director / ED in the year 2017.
2. It is also requested to kindly provide inspection of the above file so as to identify any other relevant document relating to proceedings being conducted under the above File No. C-14011/2/2019-Ad.ED. The requisite charges towards Xerox copies will be borne by the applicant."
Respondent No.1 furnished a reply to the appellant on 02.05.2022 stating as under:
a. Sanction of prosecution against Shri Shashi Shekhar, AD was granted by DoR on 06.11.2019, as requested by CBI, the same was revised on 14.11.2019.
b. Your RTI application is being transferred to CBI under Section 6(3) of RTI Act, 2005 for furnishing reply.
c. Sanction of prosecution case against Shri Shashi Shekhar, AD was dealt in F.No.C-14011/1/2019-Ad.ED. Due to typographical mistake, the file no C- 14011/2/2019 was mentioned in our sanction order dated 14.11.2019. Information sought by you is denied in terms of Rule 8 1(h) of RTI Act.
2d. Information sought by RTI applicant can't be furnished in terms of rule 8 1(h) of RTI, Act.
e. Your RTI application is being transferred to Enforcement Directorate under Section 6(3) of RTI Act, 2005 for furnishing reply. f. Your RTI application is being transferred to Enforcement Directorate under Section 6(3) of RTI Act, 2005 for furnishing reply. g. Recruitment Rule dated 09.05.2014 was applicable to Assistant Director in the year 2017. The same is available on the website of ED.
Respondent No.3 provided a reply to the Appellant on 11.05.2022 seeking exemption under Section 24 of the RTI Act.
Being dissatisfied with the reply against paras (b), (c), (d), (e) & (f) of the RTI Application, the appellant filed a First Appeal dated 04.06.2022 with the FAA of Respondent No.1. FAA's order dated 01.07.2022, stated as under:-
"The CPIO has provided the information sought vide point (a). The CPIO has rightlv transferred the request to CBI wrt the information sought vide point (b).
With respect to the information sought vide point (c) and (d), the CPIO has rightly rejected the information as it relates to the ongoing investigation.
With respect to the information sought vide point (e) and (f), the CPIO has transferred the request to ED.
The CPIO shall furnish this information, ie information sought vide points (e) and (f) of the RTI application: if and as available in the records with the CPIO.
The CPIO has provided the information sought vide point (g)."
Feeling aggrieved and dissatisfied with the FAA's order, the appellant approached the Commission with the instant Second Appeal stating inter alia as under:
A. "Because the CPIO (Ad.ED) had wrongly rejected the RTI application dated 06.04.2022 and wrongly applied the provisions contained in Section 8(1)(h) of the RTI Act,2005.
B. Because, the Judgement of Hon'ble Delhi High Court about applicability of section 8(1)(h) is very categorical. It has been held in Union of India V. Manjit Singh Bali reported at 2018 SCC Online Del 10394, (Copy annexed) please kindly refer to paras 24 to 26, thereof. Hence the denial of information has to be rejected and CPIO needs to be directed to immediately furnish the information.
C. Because the impugned order has wrongly recorded that 'investigation is ongoing' despite noting on record that chargesheet has been filed. Therefore, once the chargesheet has been filed after the investigation is complete. The 3 judgement and order needs to be set aside on this wrong understanding of law. CPIO needs to be directed that the requisite information be granted/supplied.
D. Because the CPIO has at the time of considering the application, didn't deny on the reason that the information is not available with him. It is only after the appeal was allowed qua query (e) and (f). Hence the CPIO needs to be directed to procure the requisite information from the department of which he is CPIO and make it available to applicant/appellant. CPlO issued notice and sought reply from Enforcement Directorate and despite not agreeing to the stand of the Department, still took recourse to section 8(1)(h). Therefore, its within the jurisdiction of CPIO to procure/direct information from the department, of which he has been designated as CPIO and make it available after direction from FAA. Therefore, the said reasoning needs to be set aside and directions issued for supply of requisite information. E. Because the aforesaid RTI application has been rejected vide letter 02.05.2022, whereby the CPIO has answered to the para no.(a) and (g) only and rest of the queries mentioned in para (b), (c), (d), (e) and (f) remains unanswered and transferred to the concerned department. This appeal deserves to be allowed and the CPIO be directed to furnish the required details and documents to the appellant, on the grounds and reasons here in this appeal.
F. Because the First Appellate Authority has erroneously rejected the First Appeal dated 04.06.2022and whereby the First Appeal has been disposed off with the observation that the CPIO (Ad. ED) has rightly denied the request and upheld the replies submitted by the CPIOs under the relevant section of the RTI Act, 2005. The Hon'ble Authority in its order dated 01.07.2022 has wrongly applied the provisions contained in Section 8(1)(h) of the RTI Act, 2005 while disposing off the First Appeal and denied the request of the appellant. There is not even an iota of reasoning as to how such an information would impede process of investigation or otherwise. Please kindly refer to the Order and Judgement of this Hon'ble Commission in Manvendra Singh Raghav V. CPIO, Central Vigilance Commission, INA, New Delhi reported at 2020 SCC Online CIC 624(copy annexed), paras 6 onwards. Therefore, in similar circumstance, ie, after grant of sanction and filing of chargesheet, this appeal deserves to be allowed."
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Not present. (Advocate S A Saud representing the Appellant appeared after the hearing was concluded and requested to know the fate of the case, to which he was advised to instantaneously file written submissions, if any.) 4 Respondent No.1: Rajeev Lochan, US & CPIO present through intra-video conference.
Respondent No.2: Not present.
Respondent No.3: Sharad Kumar, DD & CPIO along with Advocate Sidharth Kumar present through intra-video conference.
Respondent No.1 reiterated the contents of his written submission dated 11.07.2023, copy of which was also endorsed to the Appellant, stating as under:
"(a) lnformation with reference to point no. (a) and (g) was available with the CPIO and the same was furnished to RTI applicant.
(b) Information pertaining to point no. (b), (e) and (f) was not available with CPIO and therefore transferred to concerned CPIO in CBI and ED for furnishing information to RTI applicant.
(c) With reference to point no (c) and (d), the information was denied to RTI applicant as it relates to ongoing investigation. lnspection of such documents is denied to RTI applicant as per Section 8(l)(h) of RTI Act,2005.
(d) Section 8(l)(h) of the RTI Act exempts an information which would impede the process of investigation or apprehension or prosecution of offenders."
Upon a query from the Commission regarding the latest status of the case, Respondent No.1 submitted that he will have to ascertain the same from CBI and urged for some time to submit the same.
Respondent No.3 also reiterated their written submissions dated 13.07.2023 stating inter alia as under:
"2. That at the outset the respondent no. 3 denies the contents of the instant appeal including the submissions and the contentions/ averments urged in the appeal are not admitted except what is admitted herein. All other averments, contentions and submissions not specifically admitted herein below shall be deemed to have been categorically denied, though not traversed.
3. That the appellant preferred this instant Second Appeal before this Hon'ble Commission against the order no. F. No. C-20/1/RTI/Rejection/HQ/20221Pt. II dated 11.05.2022 to his RTI application dated 13.04.2022 filed before the Central Public Information Officer, Directorate of Enforcement, New Delhi.
4. That it is pertinent to mention here that the appellant did not prefer first appeal before the First Appellate Authority of the Enforcement Directorate against the order of CPIO and has directly preferred the second appeal before the Hon'ble Commission against the provisions as prescribed in RTI Act, 2005, arraying CPIO, Enforcement Directorate as one of the respondents.5
5. That the appellant has filed RTI application dated 06.04,2022 to the CPIO and Under Secretary to the Government of India seeking certain information related to his service matter. The RTI application was transferred to the Respondent No. 3 on 02.05.2022 by the Respondent No. 1 with request to furnish information pertaining to point no. (e) and (f) of the RTI application, which reads as under-
(e) Whether my pay has been fixed for purposes of services.
(f) What was my fixed pay in 2017, 2018 and 2019.
6. That the appellant is Assistant Director under suspension in the Directorate of Enforcement (Respondent No.3) and is being paid Subsistence Allowance in terms of Fundamental Rules [FR 53 1(ii) (a) -- (i) & (ii)]
7. That the RTI application of the applicant was rejected by the Respondent No. 3 after due consideration since the requisite information/ documents could not be provided in view of the exemption to the Directorate of Enforcement under section 24 read with second schedule of the RTI Act where the name of the Enforcement Directorate figures..."
The matter was reserved for decision.
Decision:
No written submissions received from the Appellant or his advocate before the hearing despite the liberty accorded at para 4 of the notice of hearing or after the hearing till date, therefore the grounds of Second Appeal have been taken on record and mentioned above.
At the outset, the Commission based on a perusal of the facts on record observes that the Appellant has filed the instant appeal against Respondent No.1 after exhausting the channel of First Appeal against the said CPIO. Although, in the material on record, he sparingly expresses his dissatisfaction with the reply of Respondent No.3 dated 11.05.2022, however, he has neither exhausted the channel of filing a First Appeal against the said CPIO nor has he arrayed the said CPIO in his Appeal memo of parties. Moreover, his First Appeal to Respondent No.1 containing a brief statement about dissatisfaction with the reply of Respondent No.3 is absurd and cannot be considered as a First Appeal against the CPIO, Respondent No.3 as the FAA, Respondent No.1 has no jurisdiction over the reply of Respondent No.3. Similarly, the Appellant has also no case to make against Respondent No.2.
For the above reasons, the Commission dispenses with the role of Respondent No.2 & 3 in the matter and finds that the issue of the notice of hearing to these 6 public authorities was void as the Second Appeal is not filed or maintainable against them.
Now, it is pertinent to note from the grounds of the Second Appeal that the Appellant is insistent that Respondent No.1 ought to provide the information from their records or procure and provide from concerned record holders. Considering this aspect, the Commission finds that the reply of the CPIO on paras (e) & (f) of the RTI Application requires no intervention since the queries as such do not conform strictly to Section 2(f) of the RTI Act being clarificatory in nature.
Similar observation is pertinent for para (d) as the Appellant has sought for information based on a speculative query as it has not been specified as to which correspondence is he looking for and it will require the CPIO to deduce and interpret the records. As for para (c), in the face of a pending action of investigation or trial, allowing disclosure of complete file cannot not be squarely said to not cause an impediment to the process thereof. The Commission would have been in a position to examine the relief to be provided against the request for information on these points in the backdrop of the citations relied upon in the grounds of Second Appeal by the Appellant if the information sought for from the averred file was specific and did not bear ex-facie sweeping effect.
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, the provision of Section 2(f) of the RTI Act is reproduced hereunder:
"2. Definitions.--In this Act, unless the context otherwise requires,--
(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;.."
In this regard, the Appellant's attention is drawn 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:
7"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) Nonetheless, by way of a liberal interpretation to determine the relief pertinent in the matter with respect to para (c) it is noted that the Respondent No.1 has not been able to duly justify the exemption of Section 8(1)(h) of the RTI Act for para (c) of the RTI Application as required under Section 19(5) of the RTI Act which provides that:
"(5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request".
Having considered the totality of the circumstances discussed above, the Commission orders limited relief in the matter by directing Respondent No.1 to revisit para (c) to ascertain if the applicability of Section 8(1)(h) of the RTI Act subsists as on date. In the event that the disclosure of the records is found to be squarely hit by the exemption of Section 8(1)(h) of the RTI Act, the CPIO will provide a revised reply incorporating a proper justification for the same after taking into consideration the citation referred to by the Appellant in the matter of Union Of India vs Manjit Singh Bali (cited in the reproduced text of the grounds of second appeal above.) Here the Appellant must keep in mind that considering the lack of specifics in the information sought for at para (c), the liberty as mentioned in the preceding para ought to be accorded to the CPIO to revisit the matter.
As for para (b), keeping in view the insistence of the Appellant that he wants the information as available in the records of Respondent No.1 and the fact that the Respondent No.1 has not submitted any update on the latest status of the case or 8 has confirmed the unavailability of this information in their office, it will be judicious to direct Respondent No.1 in the interest of justice to now provide the available information or categorically state unavailability, if applicable, for para
(b) to the Appellant.
The above directions for para (c), as applicable, and for para (b) shall be complied with by Respondent No.1 within 30 days of the receipt of this order under due intimation to the Commission.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) हािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 9