Central Information Commission
Sanjeev Kumar Chhikara vs Indian Army on 15 February, 2021
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सच ु ना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मु नरका, नई द ल - 110067
Munirka, New Delhi-110067
File no.: CIC/IARMY/A/2019/117683
In the matter of:
Sanjeev Kumar Chhikara
... Appellant
VS
Central Public Information Officer
RTI Cell, (Edn Branch) HQ Western Command
Chandimandir, Haryana - 134 107
...Respondent
RTI application filed on : 17/09/2018 CPIO replied on : 08/10/2018 First appeal filed on : 20/10/2018 First Appellate Authority order : 05/12/2018 Second Appeal filed on : 06/03/2018 Date of Hearing : 08/02/2021 Date of Decision : 15/02/2021 The following were present: Appellant: Present over VC at CIC Respondent: Col S.K Rath, CPIO, present over VC Information Sought:
The appellant has sought the following information:
(a). Whether a General Court Martial (GCM) convened by HQ Delhi Area vide Convening Order dated 11 Dec 2017 and its findings and sentence was confirmed by the GOC-in-C Western Command in respect of the appellant. If yes, following information/documents be provided:
(i) Did the Charge Sheet have the mandatory endorsement "To be tried by General Court Martial" at the foot of the Charge Sheet, on the date of assembly of the GCM, on 19 Dec 2017?
(ii) Were the convening order, charge-sheet and the summary or abstract of evidence were placed before the court, on the court assembly, on 19 Dec 2017?
(iii) On court- assembly, is arraignment of an accused by a GCM, based on Charge Sheet, which did not even have the mandatory endorsement -"to be tried by General Court Martial", at the foot of the said Charge Sheet, legally and technically in order?
(b). While considering the case/evidence for convening a GCM under Army Rule-37, can the Convening Authority peruse and rely on the evidence contained in the Court of Inquiry (C of l) proceedings along with the S of E for convening the GCM?
(c). Copy of the findings, recommendations, opinion of the C of I and directions of the competent authority on the C of I proceedings.
(d to g) - And other related information.
Grounds for Second Appeal The CPIO did not provide the desired information.
Submissions made by Appellant and Respondent during Hearing:
The appellant submitted that the reply in respect of points no. 3(a)(ii) and 3(g)(ix) only were satisfactory. The proceedings were complete on 20.08.2018 and 13.08.2020 and there is nothing pending and hence information sought should be given. He pressed for certified copies. He also requested the Commission to impose costs as fabricated evidence and documents were given.
The appellant vide his written submissions dated 07.02.2021 submitted that a General Court Martial (GCM) was convened by HQ Delhi Area vide Convening order dated 11.12.2017. The proceedings of the GCM were conducted and concluded from 19 Dec 2017 to 17 Apr 2018. The findings and sentence of the GCM has been confirmed by the GOC-in-C Western Command vide order 20th Aug 2018 and the Government of India, Ministry of Defence vide order dated 13th Aug 2020.
He further submitted that the disciplinary proceedings against him have been completed in all respects and nothing is pending. The appellant has sought for the specific information/documents pertaining to his own case, vide RTI application dated 17.09.2018 forwarded to CPIO HQ Western Command and same was replied by the CPIO vide letter dated 08.10.2018 and upheld by the FAA.
He further submitted that the information provided by the CPIO in respect of point no. (a) is misleading, false and fabricated. In respect of point no. (c) he contested that the CPIO had not provided the specific information sought. In respect of point no. (d) he submitted that the convening authority has perused the Court of Inquiry proceedings along with the summary of evidence while considering the case under AR 37, in the instant case, as per HQ Delhi Area AAG (Legal) file noting dated 08 Dec 2017 produced during the GCM proceedings.
Therefore, the requested information is specific in the instant case and cannot be denied under RTI. In respect of points no. 2(e) to (i), the RTI application includes the pre trial documents/advice/opinions rendered (which is essential part of the process which has compelled the authorities to finalise convene a GCM and confirm the GCM proceedings) and file notings/minutes/service notes with remarks/opinions/recommendations of the concerned authorities in chain and other information/documents connected with the appellant's case. The officers did not make notings in the files in any fiduciary capacity but in the ordinary course and these constitute official records of the unit/formations concerned. He has been denied the requested disclosable information/filenotings/minutes/documents/advices/opinions/recommendati ons under Sec 8(1)(e) of the RTI Act and other non statutory provisions of the Regulations of the Army.
The CPIO submitted that the Court of inquiry proceedings is not disclosable to the accused or any other person.
Observations:
Based on a perusal of the record, it was noted that the CPIO had provided a point-wise reply in respect of points (a) to (g) and the FAA also concurred with the CPIO's reply. It was noted that the appellant challenged the reply in respect of point (a) as misleading however he had not substantiated the same plea. On a perusal of the query it was noted that the appellant had asked "Was a General Court Martial (GCM) convened by HQ Delhi Area vide convening order dated 11 Dec 2017 and its findings and sentence confirmed by the GOC-in-C Western Command in respect of the applicant? If yes, following information/documents be provided:- (i) Did the charge sheet have the mandatory endorsement "To be tried by General Court Martial" at the foot of the charge sheet on the state of assembly of the GCM, on 19 Dec 2017, in the instant case? (iii) On court-assembly, is arraignment of an accused by a GCM, based on charge sheet which did not even have the mandatory endorsement- "to be tried by General Court Martial", at the foot of the said charge sheet, legally and technically in order? The CPIO replied to the same stating that perusal of the GCM proceedings reveal that the chargesheet dated 14 Dec 2017 has an endorsement "To be tried by a General Court Martial" by Offg GOC, Delhi Area dated 15 Dec 2017. As per the convening order dated 11 Dec 2017, your GCM was assembled at Central Ordinance Depot, Delhi Cantt on 19 Dec 2017. Hence, the chargesheet had the mandatory endorsement "To be tried by General Court Martial on it", on the date of the assembly of the General Court Martial in the instant case. The GCM proceedings containing ibid details has already been handed over to you on 17 Apr 2018. The CPIO had provided a suitable reply though both the queries (a)(i) and (iii) were in the nature of seeking clarifications and not strictly covered u/s 2(f) of the RTI Act. In respect of point no. (b) he submitted that the convening authority has perused the Court of Inquiry proceedings along with the summary of evidence while considering the case under AR 37, in the instant case, as per HQ Delhi Area AAG (Legal) file noting dated 08 Dec 2017 produced during the GCM proceedings. Therefore, the requested information is specific in the instant case and can not be denied under RTI. On a perusal of the query it was noted that the appellant had asked "While considering the case/evidence for convening a GCM under Army Rule-37, Can the convening authority peruse and rely on the evidence contained in the Court of Inquiry proceedings along with the S of E for convening the GCM? The CPIO has rightly denied the information stating that the same is seeking opinion and not information. He had further contested the denial of the rest of the information u/s 8(1)(e) of the RTI Act and other statutory regulations, stating that the pre trial documents/advice/opinions rendered (which is essential part of the process which has compelled the authorities to finalise convene a GCM and confirm the GCM proceedings) and file notings/minutes/service notes with remarks/opinions/recommendations of the concerned authorities in chain and other information/documents connected with the appellant's case. The officers did not make notings in the files in any fiduciary capacity but in the ordinary course and these constitute official records of the unit/formations concerned.
It was noted that the information sought was denied stating that as per para 471 of the Regulations for the Army, 1987 the reports by officers of the JAG's Department are confidential in nature and will not be communicated directly or indirectly to any authority than the authority to whom they are addressed.
The letter no. 51607/CM/JAG/2016 dated 04 Jul 2016, sought by you has been issued by JAG branch office. The same is exempted u/s 8(1)(e) of the RTI Act from disclosure being held in fiduciary relationship. The sole contention of the appellant was that the information sought relates to his own GCM proceedings and therefore should be provided. The Commission finds it imperative to mention here that there was no substantial argument forwarded by the appellant to rebut the exemption claimed by the CPIO u/s 8(1)(e) of the RTI Act. Keeping in view the fact that the GCM proceedings was conducted by the Indian Army and as the file contents can reveal information relating to functioning of the same etc, the Commission is not inclined to direct disclosure of information in the absence of any substantial ground.
Decision:
In view of the aforesaid it is amply clear that though the appellant is asking for information on inquiry proceedings of his own and the inquiry has been concluded, he could not explain how the file noting(s) on the GCM proceedings are not held in a fiduciary capacity as per Section 8(1)(e) of the RTI Act. The Commission sees no merit in the appellant's submissions and finds that information sought cannot be disclosed.
The appeal is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना) Information Commissioner (सच ू ना आय! ु त) Authenticated true copy (अ भ मा णत स या पत त) A.K. Assija (ऐ.के. असीजा) Dy. Registrar (उप-पंजीयक) 011-26182594 / दनांक/ Date