Central Information Commission
Nilesh Pathak vs Ministry Of Defence on 25 April, 2023
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सुचना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मुिनरका, नई द ली - 110067
Munirka, New Delhi-110067
File no.: - CIC/DODEF/A/2022/119530
In the matter of
Nilesh Pathak
... Appellant
VS
Central Public Information Officer
Ministry of Defence
RTI Cell, Addl DG AE, G-6, D-1 Wing,
Sena Bhawan, Gate No. 4, IHQ of MoD (Army)
New Delhi - 110 011
...Respondent
RTI application filed on : 05/08/2020 CPIO replied on : 04/02/2021, 30/06/2021 First appeal filed on : 21/05/2021 First Appellate Authority order dated : 17/06/2021 Second Appeal dated : 23/04/2022 Date of Hearing : 24/04/2023 Date of Decision : 24/04/2023 The following were present: Appellant: Present over VC
Respondent: Lt. Col. Abhishek Jha-Present over intra-VC Information Sought:
The appellant has stated that Armed Forces Tribunal (AFT) Regional Bench, Jabalpur has passed the Order dated 08/03/2019 in his case No. OA/41/2017. The Civil Appeal No. 2616 of 2020 filed by the Union of India & Others against the AFT order dated 08/03/2019 has been dismissed by the Hon'ble Supreme Court vide order dated 17/06/2020. In this regard, the appellant has sought for the following information:
1. Provide the present status of the case file regarding implementation of Hon'ble Supreme Court order dated 17/06/2020.1
2. Provide inspection of files which have been sent by DGFM, GS Branch, IHQ of MoD(Army) on 31 May 2019 as also the new file created on the same issue from 31 May 2019 to till date. Provide copies of all the documents and noting sheets of that file.
3. Provide copies of legal opinion which was received from various legal authorities of Army and Ministry of Law in respect of Civil Appeal No. 2616/2020 - UOI & Others Vs Nilesh Pathak.
4. Provide copies of policies/ circulars, regarding implementation of Hon'ble Court Orders which were issued by the MoD.
Grounds for filing Second Appeal:
The CPIO did not provide the desired information.
Submissions made by Appellant and Respondent during Hearing:
The appellant was aggrieved over non-receipt of satisfactory information from the CPIO and the FAA. He acknowledged the receipt of the written submissions of the CPIO dated 21.04.2023 through email.
The CPIO stated that the disclosable information has been disseminated and the order of the FAA has also been duly complied with. He stated that the information sought for in queries no. 2 and 3 was barred from disclosure under Section-8(1)(d) of the RTI Act, 2005. The written submissions of the CPIO dated 21.04.2023 was taken on the record of the Commission.
Observations:
Keeping in view the facts of the case and after hearing the submissions of both the parties, the Commission observed that the CPIO had given point-wise replies to the appellant on 04/02/2021 and 30/06/2021. The Commission noted that the CPIO has given the status of implementation as sought for in point no. 1 to the appellant.
The CPIO has denied the sought for information in point no. 2 under Section- 8(1)(d) of the RTI Act, 2005. The Commission noted that the denial under this exemption clause in the absence of proper reasons for denial was improper. During the hearing, the CPIO volunteered to allow the opportunity of inspection of relevant records to the appellant, therefore, the Commission directed the parties to conduct inspection of the relevant records as sought for in point no. 2 at a mutually convenient date, time and place. Furthermore, the appellant has sought for copies of the legal opinion in point no. 3. In this regard, it is trite to mention that the Hon'ble Kerala High Court in the decision of Secretary to Advocate General v. Kerala State Information 2 Commission, WP(C) 7240/2013, dated 30.09.2022 has held that the legal advice rendered by the Advocate General to the Government is exempted from disclosure under Section 8(1)(e) of the RTI Act, 2005 as the relationship between the two constituted a fiduciary relationship. The relevant observations are reproduced below:
"From the above discussions, it is clear that the lawyer-client relationship is a fiduciary relationship. There may be delicate and confidential communications between a lawyer and his client. All communications between the lawyer and his client are to be protected because these communications are confidential. The same is protected as per Section 8(1)(e) of the Act 2005."
Therefore, the Commission concluded that the legal opinion sought for by the appellant in query no. 3 is barred from disclosure under Section 8(1)(e) of the RTI Act, 2005.
In response to query no. 4, the CPIO has apprised the appellant that the respondent authority is constitutionally obligated to follow and implement the orders of the Hon'ble Supreme Court of India. Therefore, no express policy or circular in this regard was available in the records. The Commission accepted the said response.
Decision:
In view of the above, the Commission directs the CPIO to allow for the inspection and to facilitate the conduct of inspection of the relevant records as sought for in point no. 2 at a mutually convenient date, time and place, within 30 days from the date of receipt of this order. If the appellant fails to conduct the inspection within the said time frame, his right of inspection and receipt of the relevant documents shall be forfeited. During the conduct of such inspection, personal/sensitive information of the armed officials, if any, which may harm the security interest of the respondent should be masked/redacted by the CPIO as per the provisions of Section-10 of the RTI Act, 2005.
The instant second appeal is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मा णत स या पत ित) 3 A.K. Assija (ऐ.के. असीजा) Dy. Registrar (उप-पंजीयक) 011- 26182594 / दनांक / Date 4