Central Information Commission
Shri B.R. Beedu vs Directorate General Of Vigilance, ... on 22 July, 2009
CENTRAL INFORMATION COMMISSION
.....
F.No.CIC/AT/A/2009/000376
Dated, the 22nd July, 2009.
Appellant : Shri B.R. Beedu
Respondents : Directorate General of Vigilance, Customs & Central
Excise.
This matter came up for hearing on 25.06.2009 pursuant to Commission's notice dated 21.05.2009. Appellant was absent when called. Respondents were represented by Shri S. Chandrasekaran, Assistant Commissioner (Vigilance) & CPIO.
2. Appellant's RTI-application dated 10.10.2008 was relating to information in the context of certain charges which have been served on him through a memo dated 24.12.2007 by the Commissioner of Central Excise, Coimbatore. These charges apparently mentioned the failure of the appellant to verify if the DC had countersigned the shipping bill while pre-auditing the third-party's drawback claims and, thus appellant was held to have failed to perform his duties, viz. ensuring compliance of the instructions, circular, notifications, etc. issued by the Commissioner, the CBEC and the Ministry of Finance, Government of India with regard to pre-audit of all duty draw back claims for export of goods. Appellant has stated that even after nine months of the issue of the charge-memo, the copies of the specific instructions, circulars or notifications, which appellant was charged for not following, had not been provided to him to enable him to build his defence. In view of the above, the appellant proceeded to raise certain queries which related to the above-mentioned charge-memo served on him. These queries read as follows:-
"1. Whether there are any specific instructions, circular, notifications issued by the Commissioner, Central Board of Excise and Customs and the Ministry of Finance, New Delhi with regard to pre-audit of export of goods as enumerated in the sanction of drawback claims as per drawback rules and also as per the guidelines and instructions envisaged in the Customs appraising manual, I should have verified as to whether DC had countersigned the shipping bill in token of approval of assessment done by the Superintendent / AT-22072009-07.doc Page 1 of 7 Appraiser in terms of quantity, quality and value at the time of pre-audit.
2. If so copy of the same.
3. Whether there is any provision in law which requires the person who process the drawback claims and attends to the pre audit to verify actions which have taken place prior to let export stage.
4. If so copy of the same.
5. Copy of the report of the ADG (Vig.), SZU along with enclosures, if any, referred in letter F.No.V.527/25/2005 /1761 dated 13.04.2006 addressed to Shri J.M.K. Sekhar, Chief Commissioner of Customs and Central Excise, Coimbatore.
6. Whether the copy of the instructions, circulars, notifications issued by Commissioner, Central Board of Excise & Customs, and the Ministry of Finance, that at the time of pre-audit of drawback claims, the verification as to whether DC has counter signed the shipping bill in token of approval of the assessment done by the Superintendent / Appraiser in terms of quantity, quality, and value, has to be carried out and the copies of guidelines and instructions in the Customs appraising manual, that at the time of pre- audit of drawback claims, the verification as to whether DC has counter signed the shipping bill in token of approval of the assessment done by the Superintendent / Appraiser in terms of quantity, qualify, and value, has to be carried out is available in the file C.No.II/8/02/06-Dte.Vig, in which the issue of Draft Charge Sheet was dealt with.
7. If available, furnish the page number assigned for the same in the file, separately for each of them.
8. If available, copies of the same."
3. The CPIO furnished to the appellant reply on 14.11.2008 and the first-appeal was decided by the Appellate Authority on 10.12.2008. CPIO's reply stated that as regards item at Sl.Nos.1, 2, 3 and 4, the documentation relied upon for issuing the charge-memo to the AT-22072009-07.doc Page 2 of 7 appellant was provided to him as requested in these queries. For queries at Sl.No.5, CPIO cited Section 8(1)(h) of the RTI Act not to disclose the information as it was relating to an investigation report of Additional Director General (Vig), SZU, Chennai. Regarding items at Sl.Nos.6 to 8, the replies furnished for items at Sl.Nos.1 and 3 were repeated.
4. The Appellate Authority categorized the request of the appellant for information as follows:-
"a. Instructions, circulars, notifications, guidelines which stipulate that Shri B.R. Beedu as Superintendent (Audit) should have verified whether the Competent Authority had countersigned the shipping bill.
b. Whether the officers entrusted with the task of audit, are required to verify action which have taken place prior to let export stage.
c. Copy of the preliminary enquiry report of Additional Director General (Vig) along with enclosure."
5. Appellate Authority noticed that appellant had sought information regarding the scope of pre-audit and whether he could at-all be charged for violation of instructions about pre-audit given the subject of the case. Appellate Authority noted that CPIO could provide only copies of documents, i.e. public notices and instructions and was not obliged to comment on the nature of the charges framed against the appellant or about the sustainability of the allegation about lapses.
6. Appellate Authority made available to the appellant a copy of Circular No.17/2000 dated 29.02.2000, which provided that 100% pre-audit of all drawback claims by Internal Audit Department was to continue. Appellate Authority also enclosed for the appellant's information pages 3 and 4 of the Customs Appraising Manual Volume 1, which stipulated that Internal Audit Department was entrusted with the basic functions of checking and verification of correctness of assessments from the revenue angle, checking the appropriateness of all refunds and drawback sanctioned by different units in the Customs House.
AT-22072009-07.doc Page 3 of 7
7. Appellate Authority went on to add a word of caution that appellant was vainly attempting to use the RTI Act proceedings as a substitute for disciplinary proceedings.
8. Appellate Authority noted that appellant had requested for a copy of the preliminary enquiry report of Addl. Director General (Vigilance), Chennai. Appellate Authority considered this report non-disclosable on the ground that it was a privileged document in public interest as envisaged in proviso to sub-rule 13 of rule 14 of the CCS(CCA) Rules, 1965.
9. Appellate Authority further noted that when the charge-memo under the CCS(CCA) Rules will be served on the appellant, the regular departmental enquiry will commence and the documents relied upon for enquiry will be provided to him. In the judgement of the Appellate Authority, preliminary enquiry report was not part of relied upon documents and was treated as a confidential matter. It contained information received in fiduciary relationship. He also concluded that disclosure of such information could adversely affect the source of information or assistance given in confidence for law-enforcement. It was, therefore, his conclusion that as the enquiry proceedings were in progress disclosure of the preliminary enquiry report would impede the process of regular departmental enquiry.
10. Appellate Authority, therefore, rejected appellant's first-appeal.
11. In his second-appeal petition, appellant has taken the following plea regarding the respondents' replies to his queries:-
12. Query at Sl.No.1, according to the appellant, was a clear and specific query and the copies of the public notice, which CPIO transmitted to him in response to this query, was entirely unconnected with the text of the query. Respondents stated that "these instructions are for admission and assessment of the shipping bill before the goods were examined ⎯ hence these instructions have no bearing on the work relating to the pre-audit of the drawback claims". According to the appellant, the First Appellate Authority erred in concluding that CPIO could have provided to the appellant copies of the public notice and instructions ⎯ which he actually did ⎯ and could not have commented on whether appellant was guilty of lapses or not. Appellant believes that Appellate Authority decided the matter 'mechanically' without going into whether copy of the "public notice" provided by the CPIO to him was at-all congruent with appellant's RTI-query. He AT-22072009-07.doc Page 4 of 7 believes that the copy of the notice provided to him did not mention anything about pre-audit.
13. Another plea of the appellant was related to his queries at Sl.Nos.3 and 4 of his RTI-application, which he believes were not properly replied to by the respondents. According to him, the replies furnished to this query by the CPIO were 'contradictory'.
14. Appellant has further argued that while the CPIO and the Appellate Authority have attempted to furnish to him certain information, which they believed was congruent with his queries, what was really true but was not accepted by the respondents, was that "there are no instructions as to what are the checks to be carried out at the time of pre-audit of drawback claims and instead of accepting the same the CPIO and the FAA are trying to divert the issue by giving irrelevant reply."
15. In respect of appellant's query at Sl.No.5, it was his contention that the CPIO and the Appellate Authority had wrongly applied Section 8(1)(h) in holding up the information from him.
16. What is quite noticeable in the appellant's averments in the second-appeal is, that faced with an ongoing enquiry against some of his actions, he now has used the RTI route to engage the public authority in a dialogue about the basis on which certain adverse conclusions against him were drawn, which led to the charges being framed against him. As the Appellate Authority has noted, appellant ought to have approached the public authority or the enquiry officer for the relevant documentation. The appellant has attempted to pose a question to the public authority such as conditionalities of pre-audit, instructions, etc., about who was responsible for pre-audit and so on and, then called upon them to find the documentation corresponding to those points. When the respondents supplied him a set of documents, he claims that those were not relevant to the query. What he was wanting to have from the respondents is a reply that there were no such instructions, which would enable the appellant to plead before the enquiry officer that the charge framed against him for violation of norms could not be sustained as no such norms / instructions existed. In fact, the public authority would have been absolutely within his right to inform appellant that the instructions and guidance issued from time to time in any matter about a government servant's liability for performing his duties were all in the public domain and were expected to be in the knowledge of those performing such duties. Whether the AT-22072009-07.doc Page 5 of 7 appellant violated or did not violate any such instruction could not be explored through questions under the RTI Act but needed to be debated by those vested with the power to call for the appellant's explanation and to examine it within the four corners of instructions, rules, etc. relating to the matter at hand. Using the RTI Act to start a side- dialogue with the public authority by an officer facing a disciplinary enquiry would be injurious to the ongoing enquiry and will end up complicating its process. The Appellate Authority rightly observed that the provisions of the RTI Act could not be invoked as if the Commission was being asked to pass judgement in an appeal against the disciplinary proceeding against the appellant. In our experience, quite noticeably, several public employees facing departmental proceedings or disciplinary actions use the RTI Act to ask for explanations to which there could be no direct reply. The standard question asked is ⎯ You have framed the charge against me. Now show me the rule which I violated. In fact, once a charge is framed violation or otherwise of the rule or an instruction is a matter of deliberation and determination. These are not cut and dry cases, which could be answered under the RTI Act. The attempt by petitioners, such as this appellant, to open a dialogue in this matter with the public authority is designed to derail the process of disciplinary action.
17. I find that the CPIO and the Appellate Authority have given to the appellant careful and patient replies without attempting to evade their responsibility. They have provided to him the rules, instructions, etc. based upon the scenarios appellant had painted in his RTI-application. Contrary to what the appellant has stated in his second-appeal petition, respondents were not obliged to tell him what he actually wanted to hear about the instructions and rules governing pre-audit and the obligation of the public employee thereof. In fact, in my view, respondents are not even obliged to answer such queries of the appellant which go well beyond the scope of Section 2(f) of the RTI Act being queries for explanation and elucidations which left room for interpretation. In fact, the type of reply which appellant expects the respondents to give to him would have virtually meant that through an RTI-response the public authority was exonerating appellant from the charges framed against him and would have looked quite naïve doing so. I'm surprised that appellant even had expectations for replies to the type of queries he has made.
18. I, therefore, hold that there is no infirmity in the response respondents have furnished to the appellant relating to appellant's queries except the one at Sl.No.5 of his RTI-application. This query is AT-22072009-07.doc Page 6 of 7 for a report apparently prepared by the Assistant Director General (Vigilance) and was submitted to the Chief Commissioner of Custom, Coimbatore. Respondents had withheld this report from disclosure on the ground that it contained sensitive information about the sources from which evidence was collected which went into the respondents taking the decision to frame formal charges against the appellant. Respondents have pleaded that disclosure of this variety of information would compromise their witnesses and sources and expose them to intimidation and pressures thereby attracting provisions of Section 8(1)(g) of the RTI Act.
19. I find myself in agreement with the respondents that the above information should not be disclosed for the reasons stated in the preceding paragraph.
20. Appeal is, therefore, disallowed.
21. Copy of this direction be sent to the parties.
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