Central Information Commission
Deepshikha Choudhary vs Chief Commissioner Of Customs, Kolkata ... on 10 December, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/CCUKL/A/2018/618410-BJ
Ms. Deepshikha Choudhary
....अपीलकता/Appellant
VERSUS
बनाम
CPIO & Assistant Commissioner of Customs and Personnel & Establishment
O/o the Commissioner of Customs (A&A)
Custom House, 15/1, Strand Road
Kolkata- 700001
... ितवादीगण /Respondent
Date of Hearing : 09.12.2019
Date of Decision : 10.12.2019
Date of RTI application 20.01.2018
CPIO's response 14.02.2018
Date of the First Appeal 22.03.2018
First Appellate Authority's response 18.04.2018
Date of diarised receipt of Appeal by the Commission Nil
ORDER
FACTS:
The Appellant vide her RTI application sought the copies of the dossiers received from SSC in respect to 9 officers for their appointment in the post of Examiner, of the dossiers received in respect to 8 other officers for their appointment in the post of Preventive Officer, the letters of SSC whereunder the dossiers were received in Custom House for the aforementioned officers, etc. The CPIO, vide its letter dated 14.02.2018, provided a point wise response to the Appellant. Dissatisfied by the response, the Appellant approached the FAA. The FAA vide its order dated 18.04.2018, stated that the information sought under Point 1 and 2 was exempted under Section 11 of the RTI Act, 2005 as it contained the personal information of the officers and was held in fiduciary capacity by the department.Page 1 of 5
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Ms. Deepshikha Choudhary through audio-conferencing; Respondent: Mr. S. K. Biswas, Assistant Commissioner (P&E) and Mr. Manoj Kumar Biswas, AO through VC;
The Appellant reiterated the contents of the RTI application and stated that the CPIO and FAA failed to address the queries raised by her. In her communication dated 23.11.2019 she informed the Commission that she had since shifted to Meerut and that would prefer to be personally present for the said hearings. In its reply, the Respondent informed the Commission that CPIO / FAA had furnished a suitable reply within the stipulated time period. An opportunity for personal hearing was offered to the Appellant but she did not appear. The information sought concerning officials of the Department was not furnished under Section 8 (1) (j) of the RTI Act, 2005.
During the hearing, the Respondent informed that an RTI application of the Appellant was received by the department on 25.01.2018 where she had sought for the information regarding a copy of dossiers received in their office from SSC in respect of some employees for their appointment in the post of Examiner, Preventive Officer and the copy of letters issued by their office to the SSC where under nomination of the officers were requisitioned and replies received. In view of this RTI, a reply regarding first part (i.e. mentioned as Para 01 and Para 02) was issued to the Appellant on 14.02.2018 wherein it was mentioned that for detail of the reply Rs. 42/- should be paid by the Appellant. In respect of the aforesaid letter, the applicant submitted 05 no. of IPO of Rs. 10/- each addressing to Accounts Officer, Customs, Kolkata. The same was forwarded to Accounts Department but the IPOs were not realized by accounts department because the addressee name of the IPO should be written as RBI, A/C Commissioner of Customs, Kolkata. The IPO was returned to the applicant on 13.03.2018. In view of the letter dated 13.03.2018, the Appellant again submitted 05 no. of IPO of Rs. 10/- each addressing to RBI, A/C Commissioner of Customs, Kolkata and the same was forwarded to Accounts Section but these were not realized because Accounts Department intimated that the submitted IPO was invalid as validity of IPO was over. In the mean time a letter dated 22.03.2018 was received by the department on 28.03.2018 from the Appellant, where she intimated that she had submitted First Appeal before FAA & Joint Commissioner of Customs with a request to provide rest of the information sought by her. In the instant matter, a personal hearing dated 11.04.2018 was issued on the subject matter before Shri Amrendra Narayan, the FAA & Jt. Commissioner of Custom. On 10.04.2018 AC (P&E) informed the FAA that as per Section 11 of the RTI Act, 2005, the dossier contained personal information which was confidential in nature and it should not be disclosed to the third party. On the same date the applicant again submitted IPO of Rs. 50/-. An order-in-Appeal vide F. No. S (RTI-05)-09/2018(A&A) dated 18.04.2018 was received in the department. It was found from the last page (Page No. 5) of the order-in-Appeal, the 1st Appellate Authority ordered the Appeal contained no merit and dismissed accordingly. On 24.04.2018, a letter was sent to the Applicant with the reply of RTI partly (i.e. 21 pages).
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, Page 2 of 5 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."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... "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."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
The Commission referred to the judgment of the Hon'ble Supreme Court of India in Girish Ramchandra Deshpande vs. Central Information Commission & ors. SLP(C) No. 27734 of 2012 dated 03/10/2012 wherein it was held as under:
Page 3 of 5"13......The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right."
Furthermore, the Hon'ble Supreme Court of India in the matter of Canara Bank Rep. by its Deputy Gen. Manager v. C.S. Shyam, Civil Appeal No. 22 of 2009 dated 31.08.2017 had held as under:
"5) The information was sought on 15 parameters with regard to various aspects of transfers of clerical staff and staff of the Bank with regard to individual employees. This information was in relation to the personal details of individual employee such as the date of his/her joining, designation, details of promotion earned, date of his/her joining to the Branch where he/she is posted, the authorities who issued the transfer orders etc. etc
11) Having heard the learned counsel for the appellant and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned order and dismiss the application submitted by the 1st respondent under Section 6 of the Act.
12) In our considered opinion, the issue involved herein remains no more res integra and stands settled by two decisions of this Court in Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794, 5 it may not be necessary to re-examine any legal issue urged in this appeal.
14) In our considered opinion, the aforementioned principle of law applies to the facts of this case on all force. It is for the reasons that, firstly, the information sought by respondent No.1 of individual employees working in the Bank was personal in nature;
secondly, it was exempted from being disclosed under Section 8(j) of the Act and lastly, neither respondent No.1 disclosed any public interest much less larger public interest involved in seeking such information of the individual employee and nor any finding was recorded by the Central Information Commission and the High Court as to the involvement of any larger public interest in supplying such information to respondent No.1."
The Commission also referred to the decision of the Hon'ble High Court of Sikkim in the matter of Sancha Bahadur Subba vs. State of Sikkim W.P. (C) 31/2017 dated 30.04.2018 had held as under:
"30. ............As can be culled out from the averments and submissions, the Petitioner herein suspects that the Respondent No. 5 is in possession of assets disproportionate to his known sources of income, however mere suspicion without any prima facie material to substantiate it does not justify the disclosure of such information of the Respondent No. 5 as rests with the concerned government authority. This situation indeed appears to be a fishing expedition embarked upon by the Petitioner without any bona fide public interest.Page 4 of 5
In these circumstances, it obtains that disclosure of such information would cause unwarranted invasion of the privacy of the individual and falls under the ambit of Section 8(1)(j) of the RTI Act."
Moreover, the Hon'ble High Court of Delhi in the matter of CPIO vs. Hemant Kumar Behera W.P.(C) 11658/2017 & CM No. 47383/2017 dated 27.08.2018 held as under:
"17. Mere apprehension that a third party has declared income, which is lower than the true income, cannot justify disclosure of Income Tax Returns in larger public interest."
The Appellant could not contest the submissions of the Respondent or to establish the larger public interest in disclosure which outweighs the harm to the protected interests.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the aforesaid decisions of the Superior Courts, no further intervention of the Commission is required in the matter. For redressal of her grievance, the Appellant is advised to approach an appropriate forum.
The Appeal stands disposed accordingly.
(Bimal Julka) (िबमल जु का) (Information Commissioner) (सूचना आयु ) Authenticated true copy (अ भ मा णत स या पत त) (K.L. Das) (के .एल.दास) (Dy. Registrar) (उप-पंजीयक) 011-26182598/ [email protected] दनांक / Date: 10.12.2019 Page 5 of 5