Central Information Commission
Sushil Kumar Verma vs Department Of Revenue on 2 November, 2022
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/2021/141802
Sushil Kumar Verma ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Central Bureau of Narcotics.
RTI Cell, 19, The Mall, Morar,
Gwalior, Madhya
Pradesh-474006. .... ितवादीगण /Respondent
Date of Hearing : 01/11/2022
Date of Decision : 01/11/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 10/02/2021
CPIO replied on : 30/03/2021
First appeal filed on : 07/04/2021
First Appellate Authority's order : 18/05/2021
2nd Appeal/Complaint dated : 29/09/2021
Information sought:
The Appellant filed an RTI application dated 10.02.2021 seeking the following information:
"Certified copies along with the specified enclosures of the following documents pertaining to action taken against the undersigned may kindly be provided to the undersigned under RTI Act:-1
1. Letter F.No.II(8)/26Nig/2016-1212 dated 21st August, 2018 and its Annexure E- 1 and Annexure C, addressed to The Additional Director General (Vigilance), office of the DG (Vigilance), New Delhi under Subject- Proposal for seeking First Stage Advice in the case of Shri Sushil Kumar Verma, Superintendent- Reg.
2. Letter F. No.XV(35)46/Prev/P&I Cell/Amritsar/2016-1871 dated 10.12.2018 and its Annexure 1, Annexure 17 and Annexure 18, addressed to The Director (Narcotics Control), Ministry of Finance, department of Revenue, North Block, New Delhi under Subject- Request to grant sanction of prosecution against Sh. Sushil Kumar Verma, Superintendent under section 59 of NDPS Act.
3. Letter along with all enclosures addressed to Shri Vivek Khedkar, Assistant Solicitor General of India, High Court of Madhya Pradesh, Gwalior for seeking legal opinion for taking action against the undersigned and the full reply of the letter wherein legal opinion vide his letter dated 27.06.2017 given by Shri Khedkar.
4. Letter along with all enclosures addressed to Shri Manoj Soni, Special Public Prosecutor, High Court, Indore for seeking legal opinion for taking action against the undersigned and the full reply of the letter wherein legal opinion vide his letter dated 31.07 2017 given by Shri Soni."
The CPIO furnished a reply to the appellant on 30.03.2021 stating as under:
1. "The requested document is denied under section 8(1)(h) of RTI Act, 2005 as the disciplinary proceedings against the applicant has not yet concluded. Please find enclosed CIC decision No. CIC/SB/A/2016/900433 dated 08.05.2017 in this regard.
2. The requisite documents shall not he provided order the Para 8 (1)(h) of RTI Act, 2005 "information which could impede the process or investigation or apprehension or persecution of offenders are exempted from disclosure."
3. This office letter F. No. 11(8)26/Vig/2016 dated 04.07.2017 is denied under section 8(1)(h) of RTI Act 2005 as the disciplinary proceedings against the applicant has not yet concluded and Shri Vivek Khedkar, Asstt. Solicitor General of India's letter dated 27.06.2017 is denied as the same has been denied by the Third Party.
4. This office letter F.No. XV(35)46/Prev/P&I Cell/Amritsar/2016 dated 28.07.2016 is denied under Section 8(1)(h) of RTI Act, 2005 as the disciplinary proceedings against the applicant has not yet concluded and Shri Mairoj Soni, Special Public Prosecutor (Narcotics)'s letter dated 31.07.2017 is denied as the same has been denied by the Third Party."
Being dissatisfied, the appellant filed a First Appeal dated 07.04.2021. FAA's order dated 18.05.2021 upheld the reply of CPIO stating as under:
2After going through all these documents, I have reached on this conclusion that:
"(1) The disciplinary proceedings against the applicant have not been yet concluded. Also proposal for sanction of prosecution against the applicant under Section 59 of the NDPS Act, 1985 is pending with Ministry of Finance, Department of the Revenue, New Delhi.
(2) The appellant has referred to High Court of Delhi judgment in Union of India Vs. Manjit Bali dated 06.08.2018 vide which the High Court, inter alia, has stated that '...After the investigations are complete, the information or sought by the respondent can be denied under Section 8(1)(h) of the RD Art only y the public authority apprehends that .5110) disclosure would interfere with the course of prosecution or in apprehending the offenders. It will not be open for the public authority to deny information on the ,ground that such information may assist the offender in pursuing his defence (and therefore impede his prosecution)..."
In this regard, it is to inform that while denying the information by CPIO, no claim has been made to the fact that the information is being denied because it may assist the applicant in pursuing his defence.
It is also pertinent to mention here that in the above case, a charge sheet has already been filed and the investigation stage has already been over whereas in the case of appellant, charge sheet is yet to be issued and proposal for sanction of prosecution against the applicant under Section 59 of the NDPS Act, 1985 is also pending with Ministry of Finance, Department of the Revenue, New Delhi.
Hence High Court of Delhi judgment in Union of India Vs. Manjit Singh Bali, is not applicable in the appellant case.
(3) Further, the Appellant also refers to High Court u Delhi judgment in Bhagat Singh Vs. CIC & Ors. WP (C) 3114/2007 vide which the High Court, inter alia, has stated that:
'...It is apparent that the mere existence of an investigation process cannot be a ground for refusal of information; the authority withholding information must show satisfactory reasons us to why the release of such information would hamper the investigation process. Such reasons should 3 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 a haven for dodging demands for information..."
In this regard, it is to inform that the information sought has been denied under Section 8(1)(h) on the ground that such disclosure would impede the process of investigation in so far as these would affect the ability of the Enquiry Officer to conduct and regulate the departmental proceedings going on against the applicant. The Rule 14(11)(iii), 14(12), 14(13) and 14(15) of CCS (CCA) Rules 1965 have provisions for the Charged Officers to seek additional documents not mentioned in the Charge Memorandum through the Enquiry. It is incumbent on the Enquiry Officer to find the relevancy of the documents sought and if found relevant, ask the same from the authority in custody of the documents.
If RTI proceedings are used to force the disclosure of such documents, regardless of what the Enquiry Officer may have to say on the matter, then it would potentially impede the process of enquiry by bypassing the provisions of CCS (CCA) Rules 1965 as mentioned above.
(4) The appellant also quotes High Court of Delhi judgment in B.S. Mathur Vs. PIO dated 03.06.2011 which, inter alia, states that '...As regards Section 8(1)(h) RTI Act, which is the only provisions 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..."
In this regard the reasons why the disclosure of information would impede process of investigation has already been enumerated in paras (3).
(5) In regard to applicant's allegation against the Inquiry Officer for arbitrarily refusing each and every defence document sought by him during the disciplinary proceedings, the matter does not pertain to RTI Act and the applicant has freedom to proceed under provisions of CCS (CCA) Rules 1965 as available to him.
46. In regard to applicant's specific demands for various documents, the following may be noted:
a) The applicant's demand of letter F.No.11(8)/2±/V14/2016-1212 dated 21.08.2018 and its Annexure E-1 and Annexure C, addressed to The Additional Director General (Vigilance), office of DG (Vigilance), New Delhi under Subject : Proposal for seeking First Stage Advice in the case of Sh. Sushil Kumar Verma, Superintendent is denied under Section 8(1)(h) for the reasons enumerated in Para(3) above.
Further, in light of CIC decision in F.No.CIC/AT/A/2009/0007007 dated 04.12.2009 (copy enclosed), there are specific channels of appeal, under CCS (CCA) Rules 1965, if certain document/record are denied to the applicant. Disclosure of any document/record which may he related with an ongoing disciplinary proceeding, through RTI Act, would amount to interfering and impeding that proceedings and, therefore, attract exemption under Section 8(1)(h) of RTI Act.
b) The applicant now appellant's demand of Letter F.No. XV(:.35)46/Trev/Mi Cell/Amritsar/2016-1871 dated 10.12.2018, it is stated here that vide the said letter, a proposal has been sent by this office to Director (Narcotics Control), Department of Revenue, Ministry of Finance, New Delhi for grant of sanction of prosecution against applicant now appellant. Reply from them is awaited. In case Ministry grants approval to launch the prosecution sanction applicant now appellant, interrogation/investigation of various departmental officers and private parties has to be taken. Since, the applicant now appellant being a senior officer may hamper the investigation by intimidating witnesses. Reasons why the disclosure of information would impede the process of investigation has also been enumerated in para 3 above.
The applicant's demand for letter Alongwith enclosures addressed to Sh. Vivek Khedkar, Assistant Solicitor General and Sh. Manoj Soni, Special Public Prosecutor and their replies/legal opinion thereof are denied under Section 8(1)(h) on the same grounds as mentioned in Para (3) above. The applicant should seek these documents through the Enquiry Officer, Further the legal opinion provided by Sh. Vivek Khedkar and Sh. Manoj Soni is confidential communication with legal advisers under Section 129 of Indian Evidence Act 1872 and is also protected under Section 11(1) of RTI Act.
Also, in the light of DoPT O.M. No.8/2/2010-IR dated 27.04.2010 (copy enclosed), express permission of Sh. Vivek Khedkar and Sh. Manoj Soni would be required before their legal opinion could be provided through RTI Act, and which they have expressly forbidden in their notes to legal opinion provided by them."
5Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through intra-video conference.
Respondent: Arvind Saxena, Superintendent & Rep. of CPIO present through video conference.
The Appellant stated that he is aggrieved with the denial of the information as these are vital documents for establishing his innocence in the disciplinary proceedings conducted against him. He further insisted upon the disclosure of the legal opinions sought for at points 3 & 4 of the RTI Application arguing that legal opinion tendered by government counsel cannot be said to be held in a fiduciary capacity.
The CPIO submitted that the documents sought for at points 1 & 2 of the RTI Application cannot be disclosed during the pendency of the disciplinary proceedings as has been explained by the FAA while the legal opinion sought for at points 3 & 4 has been denied to be disclosed by the averred counsels as being confidential communication.
Decision:
The Commission based on a perusal of the facts on record observes that the FAA has extensively dwelt upon the exemption of Section 8(1)(h) of the RTI Act in the matter particularly for points 1 & 2 of the RTI Application and has duly justified its applicability thereof in the instant matter. The Commission finds no reason to intervene with the observations of the FAA.
Further, as regards the denial of the information sought for at points 3 & 4 of the RTI Application, the Commission finds that Section 8(1)(e) of the RTI Act is applicable in terms of the justification tendered for the said denial by the CPIO & FAA. For the swke of clarity, the exemption of Section 8(1)(e) provides as under:
"(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,--6
(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;"
In this regard, the Commission relies upon the following observation of a constitution bench of the Hon'ble Supreme Court in the matter of B.P Singhal vs. Union of India (2010) 6 SCC 331:
"41....Though the Attorney General holds a public office, there is an element of lawyer-client relationship between the Union Government and the Attorney General...." (Emphasis Supplied) Furthermore, a division bench of the Hon'ble Supreme Court in the matter of CBSE vs. Aditya Bandhyopadhyay, (Civil Appeal No. 6454 of 2011) vide judgment dated 09.08.2011 has extensively dwelled over the meaning and import of the term ''fiduciary" and held as under:
"21. The term `fiduciary' refers to a person having a duty to act for the benefit of another, showing good faith and condour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term `fiduciary relationship' is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction/s. The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and expected not to disclose the thing or information to any third party...."
"22..... But the words `information available to a person in his fiduciary relationship' are used in section 8(1)(e) of RTI Act in its normal and well recognized sense, that is to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary - a trustee with reference to the beneficiary of the trust, a guardian with reference to a minor/physically/infirm/mentally challenged, a parent with reference to a child, a lawyer or a chartered accountant with reference to a client, a doctor or nurse with reference to a patient, an agent with reference to a principal, a partner with 7 reference to another partner, a director of a company with reference to a share- holder, an executor with reference to a legatee, a receiver with reference to the parties to a lis, an employer with reference to the confidential information relating to the employee, and an employee with reference to business dealings/transaction of the employer...." (Emphasis Supplied) Upon a conjoint reading of the above case laws, it will not be out of place to infer that regardless of the fact that the legal opinion sought pertains to a government appointed law officer to a public authority, the existence of a lawyer-client relationship between the two cannot be negated and consequently, the protection afforded under Section 8(1)(e) of RTI Act is available to such legal opinion by virtue of the fiduciary element subsisting therein.
Adverting to the foregoing observations, no relief can be ordered in the matter.
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 / 8