Central Information Commission
Samir Sardana vs Ministry Of Home Affairs on 26 February, 2021
के ीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi-110067
ि तीय अपील सं या / Complaint Nos.: CIC/MHOME/C/2019/639233
CIC/MHOME/C/2019/639237
CIC/MHOME/C/2019/600661
CIC/MHOME/C/2019/600726
CIC/MHOME/C/2019/600756
Shri Samir Sardana िशकायतकता /Complainant
Dehradun
VERSUS/बनाम
PIO ... ितवादीगण /Respondent
Ministry of Home Affairs
Date of Hearing : 25.02.2021
Date of Decision : 26.02.2021
Chief Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from complaint:
Note: The present batch of appeals/complaints as listed above is
preferred by the same Complainant/ Appellant. Since the issues involved
in the present appeals are similar in nature, the Commission proposes to
club these said matters and adjudicate upon them all together through
the present order for the sake of brevity and avoidance of multiple
proceedings.
Case No. Date of RTI CPIO reply First FAA's Complaint
Appeal Order filed/received
dated dated on
639233 29.12.2018 14.03.2019 06.04.2019 30.04.2019 31.03.2019
639237 29.12.2018 14.03.2019 06.04.2019 30.04.2019 31.03.2019
600661 20.12.2017 17.01.2018 - - 26.12.2018
600726 21.12.2017 17.01.2018 - - 26.12.2018
600756 02.08.2017 28.08.2017 - - 26.12.2018
(1) CIC/MHOME/C/2019/639233
(2) CIC/MHOME/C/2019/639237
Information soughtand background of the case:
Page 1 of 7The Complainant vide RTI application dated 29.12.2018 sought information with regard to certain incidents reported in media pertaining to an FIR filed regarding a person tied to a jeep by an Army officer. The Complainant inter alia sought certified a copy of the FIR about the incident along with name of the investigation officer and date of commencement and completion of enquiry, TOR of the enquiry, enquiry report, etc. The PIO, IHQ transferred the RTI application to Ministry of Home Affairs vide their letter dated 26.2.2019.
The CPIO, MHA vide letter dated 14.03.2019 replied that it is a State Government matter and advised the Complainant to approach concerned authorities in the State Government of J&K. Dissatisfied with response of the CPIO, the Complainant approached the Commission. Subsequently, the Complainant filed a First Appeal dated 06.04.2019. The FAA vide order dated 30.04.2019 upheld the reply of the CPIO observing that the matter pertains to the State Government.
Facts emerging during the hearing:
Written submission has been received from the Complainant dated 08.02.2021; the CPIO, IHQ of MoD, (Army) dated 22.02.2021 and CPIO and Dy Secretary (Admn), M/o Home Affairs dated 17.02.2021 which have been taken on record.
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearings through video conference were scheduled after giving prior notice to both the parties.
The Complainant participated in the hearing through video conference. He stated that the information sought was not disclosed by the Respondent (MHA) despite the fact that it was held and available with them as MHA is the controlling ministry for Armed Forces Special Powers Act (AFSPA) policies and violations. In support of his contention, he referred to his written submission dated 08.02.2021 wherein he had annexed a list of 150 accused individuals (approx) for whom sanction was sought by the State Government of J&K from the MHA/MOD under AFSPA. He also prayed for conversion of the instant Complaint into a Second Appeal in order to facilitate disclosure of information to him.
The Respondent was represented by Lt Col Kamal Kapoor, GSO-2 (RTI Act), RTI Cell, Maj Aman Deep Singh, AAG, HR, Dy DTE and Shri P S Dangwal, Nodal CPIO, MHA through video conference. Lt Col Kamal Kapoor stated that vide letters dated 26.02.2019 and 25.06.2019, the instant RTI application was transferred to the M/o Home Affairs and HQ Northern Command respectively as the information sought may be available with them. Moreover, vide another Page 2 of 7 reply dated 25.06.2019 addressed to the Complainant, point wise information as held and available with IHQ, MoD was also provided. Thereafter, vide reply dated 18.09.2019, the PIO, Hqr, Counter Insurgency Force (Victor) also provided point wise information as per available record to the Complainant. Shri Dangwal stated that no such information as sought in the RTI application was available with them. Since the details sought pertained to the State Government of J&K, the Complainant was advised to directly file an RTI with them. Moreover, since the application was transferred to them by the MoD itself hence transferring the application back to them was not considered appropriate by the CPIO.
Decision Keeping in view the facts of the case and the submissions made by both the parties, the Commission observes that the instant matters are complaints filed u/s 18 of the RTI Act, 2005. Hence, the only adjudication required to be made by the Commission is to determine if the information has been denied with a malafide intention or unreasonable cause to the information seeker. Hon'ble Supreme Court in CIC & Anr vs State of Manipur and Anr Civil Appeal No 10787-10788 of 2011 decided on 12.12.2011, has laid down the principles pertaining to the scope of adjudication by the Commission on complaints filed u/s 18 vis a vis'' appeals under Section 19. The relevant extracts of the judgement are as under:
35..............Therefore, the procedure contemplated under Section 18 and Section 19 of the said Act is substantially different. The nature of the power under Section 18 is supervisory in character whereas the procedure under Section 19 is an appellate procedure and a person who is aggrieved by refusal in receiving the information which he has sought for can only seek redress in the manner provided in the statute, namely, by following the procedure under Section 19. This Court is, therefore, of the opinion that Section 7 read with Section 19 provides a complete statutory mechanism to a person who is aggrieved by refusal to receive information.
Such person has to get the information by following the aforesaid statutory provisions. The contention of the appellant that information can be accessed through Section 18 is contrary to the express provision of Section 19 of the Act. It is well known when a procedure is laid down statutorily and there is no challenge to the said statutory procedure the Court should not, in the name of interpretation, lay down a procedure which is contrary to the express statutory provision. ....................
37. We are of the view that Sections 18 and 19 of the Act serve two different purposes and lay down two different procedures and they provide two different remedies. One cannot be a substitute for the other.
38. It may be that sometime in statute words are used by way of abundant caution. The same is not the position here. Here a completely different procedure has been enacted under Section 19. If the Page 3 of 7 interpretation advanced by the learned counsel for the respondent is accepted in that case Section 19 will become unworkable and especially Section 19(8) will be rendered a surplusage. Such an interpretation is totally opposed to the fundamental canons of construction. ................
42. Apart from that the procedure under Section 19 of the Act, when compared to Section 18, has several safeguards for protecting the interest of the person who has been refused the information he has sought. Section 19(5), in this connection, may be referred to. Section 19(5) puts the onus to justify the denial of request on the information officer. Therefore, it is for the officer to justify the denial. There is no such safeguard in Section 18. Apart from that the procedure under Section 19 is a time bound one but no limit is prescribed under Section 18. So out of the two procedures, between Section 18 and Section 19, the one under Section 19 is more beneficial to a person who has been denied access to information.
43. There is another aspect also. The procedure under Section 19 is an appellate procedure. A right of appeal is always a creature of statute. A right of appeal is a right of entering a superior forum for invoking its aid and interposition to correct errors of the inferior forum. It is a very valuable right. Therefore, when the statute confers such a right of appeal that must be exercised by a person who is aggrieved by reason of refusal to be furnished with the information."
Taking into consideration the documents available on record and the submissions made by both the parties, the Commission is of the view that no malafide intent can be attributed on the conduct of the CPIO hence no further intervention of the Commission u/s 18 of the RTI Act, 2005 is warranted.
Subsequent to the hearing, a written submission has been received by the Commission from the Complainant vide email dated 25.02.2021 wherein he has prayed to convert the instant matter into a second appeal inter alia on the grounds that the judgment of the Supreme Court in CIC & Anr vs State of Manipur and Anr was not applicable to the present matter since in the said matter, first appeal was not filed whereas in the instant matter he had filed a first appeal. He further stated that in the said matter, the SC gave an option to the person to still file a first appeal and the appellate authority was directed to consider the same on merits without insisting on period of limitation. In his submission, the Complainant also mentioned that "to save time and ensure that a case was not missed out, a complaint was filed as soon as the 1st appeal was made and was uploaded in the hope that later on the FAA order will also be uploaded".
The Commission has considered the submission of the Complainant. However, in the instant matters, it is observed that the Complainant filed the instant Complaints on 31.03.2019 and the first appeal was filed subsequently on 06.04.2019. The order was passed against the first appeal on 30.04.2019 after which the Complainant approached the Commission to convert the instant matter into a second appeal. This indicates that filing of the first appeal was an Page 4 of 7 afterthought perhaps to circumvent the procedural requirements. Moreover, it does not appear that the Complainant is unaware about the procedural requirements since in several cases such as CIC/ISDIV/A/2019/600789, CIC/ISDIV/A/2019/600838, etc, listed on the same day of hearing, the Complainant has satisfied the legal criteria for filing Second Appeals. Nonetheless, it is a settled position that ignorance of law is no excuse. Furthermore, in the judgement of & Anr vs State of Manipur and Anr, the Apex Court while elaborating on the distinction between the procedure under Section 18 vs Section 19, also ruled that it is one of the well known canons of interpretation that no statute should be interpreted in such a manner as to render a part of it redundant or surplusage. Misusing the Section 18 mechanism to file complaints with a request to subsequently convert the same into Second Appeals will indeed render the Section 19 mechanism redundant.
With the above observations, the instant Complaints stand dismissed.
(3) CIC/MHOME/C/2019/600661 (4) CIC/MHOME/C/2019/600726 (5) CIC/MHOME/C/2019/600756 Since in all the above matters, the CRs of officers of Public Authority are sought, they are clubbed together for adjudication and disposal.
CIC/MHOME/C/2019/600661 CIC/MHOME/C/2019/600726 The Complainant vide RTI application dated 21.12.2017 sought inspection of CR/ ACR for the last 5 years of IGP of Police Shri Sunil Garg transferred out of Goa Police.
The CPIO and Dy Secretary (Services) vide reply dated 17.01.2018denied the information under section 8(1) (j) of RTI Act, 2005 being the personal information.
Dissatisfied with the response received from the CPIO, Complainant approached the Commission with the instant Complaint.
CIC/MHOME/C/2019/600756 The Complainant vide RTI application dated 2.8.2017 desired inspection of CR/ ACR for the last 5 years of ex DGP of Goa Police Shri T.N.Mohan and ex IGP Shri V.Ranganathan who were transferred to Delhi.
The CPIO, vide letter dated 28.8.2017 stated that information sought is personal information and is exempted under section 8(1)(j) of RTI Act, 2005.
Page 5 of 7Dissatisfied with the response received from the CPIO, Complainant approached the Commission with the instant Complaint.
Facts emerging during the hearing Written submissions have been received from the Complainant dated 09.02.2021 and the CPIO and Dy Secretary (Services) dated 23.02.2021 which have been taken on record.
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearings through video conference were scheduled after giving prior notice to both the parties.
The Complainant participated in the hearing through video conference. He stated that the information sought was in the larger public interest as it pertained to senior IPS officers on whom provisions of CCS Conduct Rules were applicable. While arguing that disclosure of information should have been allowed by the CPIO, the Complainant alleged that investigations/ inquiry was carried out against the officers mentioned in his application and that being public servants denial cannot be claimed on the ground of personal information for activities performed by them in their official capacity.
The Respondent was represented by Shri B. G. Krishnan, Dy Secretary, MHA through video conference. He reiterated the reply of the CPIO and stated that since the Complainant desired personal information of third parties, it was denied u/s 8 (1) (j) of the RTI Act, 2005.
Facts emerging in Course of Hearing:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission at the outset observes that an appropriate response is provided by the CPIO in all these matters as the information sought is personal in nature. The Hon'ble Supreme Court in R.K. Jain vs. Union of India, SLP(C) No. 22609 of 2012 dated 16.04.2013 has held that disclosure of ACR of a third party is exempted in view of the earlier decision of the Apex Court in Girish Ramachandra Deshpande's matter. The relevant extract of the decision in R.K. Jain vs Union of India matter is as under:
"17. In view of the discussion made above and the decision in this Court in Girish Ramchandra Deshpande(supra), as the appellant sought for inspection of documents relating to the ACR of the Member, CESTAT, inter alia, relating to adverse entries in the ACR and the 'follow up action' taken therein on the question of integrity, we find no reason to interfere with the impugned judgment passed by the Division Bench wh ereby the order passed by the learned Single Judge was affirmed."Page 6 of 7
Furthermore, in a recent judgment dated 13.11.2019 in Civil Appeal No. 10044 OF 2010 with Civil Appeal No. 10045 OF 2010 and Civil Appeal No. 2683 of 2010, the Hon'ble Supreme Court of India, had observed as under:
"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive."
The Commission also notes that the instant matters are complaints filed u/s 18 of the RTI Act, 2005. Hence, the only adjudication required to be made by the Commission is to determine if the information has been denied with a malafide intention or unreasonable cause to the information seeker which the Commission finds is not the case in the instant matters. Hence no further intervention is required.
With the above observations, the instant Complaints stand dismissed.
Y. K. Sinha (वाई. के .िस हा) Chief Information Commissioner (मु य सूचना आयु ) Authenticated true copy (अिभ मािणतस ािपत ित) S. K. Chitkara (एस. के . िचटकारा) Dy. Registrar (उप-पंजीयक) 011-26180514 Page 7 of 7