Central Information Commission
Gopi K Bhuwalka vs Chief Commissioner Of Customs, ... on 21 November, 2022
Author: Saroj Punhani
Bench: Saroj Punhani
stके ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/CCCAZ/A/2021/662086 +
CIC/CCCAZ/A/2021/662099 +
CIC/CCCAZ/A/2021/662110
1. Arvind Kumar Singh
2. Ajay Kumar
3. Gopi Gopi K Bhuwalka ......अपीलकता /Appellant (s)
VERSUS
बनाम
CPIO,
O/o The Commissioner of
Customs, Ahmedabad, RTI Cell,
1st Floor Custom House,
Navrangpura, Ahmedabad-380009,
Gujarat. .... ितवादीगण /Respondent
Date of Hearing : 17/11/2022
Date of Decision : 17/11/2022
INFORMATION COMMISSIONER : Saroj Punhani
Note - The above mentioned Appeals have been clubbed together for decision
as these are based on same subject matter.
Relevant facts emerging from appeal:
RTI application(s) filed on : 11/10/2021
CPIO replied on : 21/10/2021
First appeal (s) filed on : 25/10/2021
First Appellate Authority order : 23/11/2021
2nd Appeal (s)/Complaint dated : 22/12/2021
1
Information sought:
The Appellant(s) filed separate RTI application(s) dated 11.10.2021 seeking the following information:
"xxx (1) Copies of all note sheets and all communication/ documents available in F. No. II/08/(Vig)04/2019.
(2) Copies of all note sheets and all communication/ documents available in F. No. II/10/(A) (Con) 05/2020, 04/2020 & 06/2020."
The CPIO replied individually to the appellant on 21.10.2021 stating as under:-
"The information sought by you cannot be provided at this juncture, in terms of provisions under Section 8(1)(h) of the RTI Act, 2005 as the investigation/ inquiry in the matter has not been completed and is still under progress."
Being dissatisfied, the appellant(s) filed a First Appeal(s) dated 25.10.2021. FAA's order (s) dated 23.11.2021 upheld the reply of CPIO. Feeling aggrieved and dissatisfied, the appellant(s)approached the Commission with the instant Second Appeal (s).
Relevant Facts emerging during Hearing:
The following were present:-
Appellant(s): Represented by Gopi K Bhukwalka present through video conference.
Respondent: Dinesh P Parmar, Asst. Commissioner & CPIO present through video conference.
The Appellant started his arguments against the instant matters on the lines of contents mentioned in the written submission dated 13.11.2022 of the Appellant in case no. CIC/CCCAZ/A/2021/662086. Relevant extracts of which are reproduced below in verbatim -
".....a. The Officers of Directorate General of Vigilance, Ahmedabad, visited Customs Division office, Surat, on 06.02.2019 for surprise check and found 6 bottles of liquor of foreign origin in a cupboard.
b. The matter was decided by the disciplinary authority and a Warning/Caution letter dated 25.03.2019 was issued to the applicant.2
c. Subsequently, two more separate inquiries, i.e. in June 2019 and December 2019, were conducted on the directions of two different Disciplinary Authorities by two different Deputy Commissioners of Customs, Customs Division, Surat, to find out the source of said bottles.
d.After about 20 months of last enquiry, a Charge Memo was issued to the applicant alongwith two other officers on the basis of report of officers of DGoV against which earlier action was taken by the then disciplinary authority. Reason for seeking information under RTI a. The charges were framed against undersigned on the basis of facts enlisted in report of DGoV on which the then disciplinary authority had decided the issue in 2019 itself. The matter was again initiated and three officers including the appellant were issued charge memo on the same facts provided/found by DGoV. Therefore, charge memo issued and subsequent action thereunder is second action taken on the same set of facts and evidences on which actions were taken in March 2019 by the then Discp. Authority, the Principal Commissioner of Custom, Ahmedabad and hence becomes a case of double jeopardy which is bad in law and untenable. Hence, denial of information/documents as sought would cause prejudice to appellant because same is sought to show or establish a case of double jeopardy.
b. The charge memo was issued after the conduct of two inquiries ordered by two different disciplinary authorities and were conducted by two different enquiry officers i.e., Deputy Commissioners. However, outcome of none of the enquiries was relied upon in the charge memo.
c. Non inclusion of outcome of the enquiries in the charge memo clearly suggest that either the Inquiries were inconclusive about the source of said liqour bottles or have an outcome which the department does not want to share and closed the issue by finding easy scapegoats in form of chargesheet. Therefore, it is in interest of justice and right of the charged officers for their defence to know the outcome of these inquiries and the views of disciplinary authority over these outcome and hence the documents of following two files were asked for:
xxx d. The information sought under RTI are related to inquiries made prior to the issuance of Charge Sheet which have been strangely not discussed and relied upon in the Charge Sheet. The Inquiry Officer cannot go beyond the scope of Charge 3 Sheet and cannot examine documents which were not relied and presented before him and thus fair enquiry was not possible in absence of such documents. Whereas, all documents right from beginning to issuance of Charge Sheet are relevant for appellant, whether it is relied or not. In absence of said documents fair defence reply was not possible and not providing such documents is denial of natural justice....."
The CPIO in rebuttal reiterated the denial of information under Section 8(1)(h) of RTI Act submitting the fact that disciplinary proceedings as also an enquiry by their Vigilance wing against the Appellant(s) was under way; therefore, the information has been denied to them under Section 8(1)(h) of RTI Act at the time of RTI Application. To a query from the Commission regarding the status of investigation, the CPIO pleaded lack of knowledge and submitted in a vague manner that since the investigation was conducted by their Vigilance wing so he was unaware about the exact status of the same.
The Rep. Of Appellant interjected to state that Vigilance inquiry in the averred case has already been concluded as a consequence to which minor penalty has also been imposed on the Appellant(s). He prayed the Commission that since the applicability of Section 8(1)(h) became ab-initio with the completion of inquiry the CPIO may be directed to provide relevant desired information in order to enable the Appellant(s) to defend their issue .
Decision:
The Commission observes from a perusal of records and upon hearing submissions of the parties that the main issue raised in the instant Appeals was denial of information sought by the CPIO under Section 8(1)(h) of RTI Act. In this regard, the Commission is in agreement with the reply of the CPIO that disclosure of information sought for would have apparently impeded the process of investigation in the matter pending disciplinary/vigilance proceedings at that time with the Respondent organization; to that extent denial of information by the CPIO under Section 8(1)(h) of RTI Act is in line with the spirit of RTI Act.
However, considering the discussions during the hearing by the Appellant that two sets of preliminary inquiries were conducted by the two IRS officers before the final Enquiry which also has since been concluded and minor penalty imposed; the blanket denial of information by the CPIO in response to the instant RTI Applications under Section of Section 8(1)(h) of RTI Act at this stage would not appear to be appropriate in view of the fact that the information as sought by the Appellant(s) pertains to their own case as well where they have been arrayed as the offenders and for which they have a constitutional right to know for the 4 purpose of their own defense . The only pertinent exemption from disclosure of information against the instant RTI Applications appears to be with respect to the names and identifying particulars of the investigating officer(s) and/ or other officers/offender which may be reflected on the notings/comments/enquiry report and cannot be divulged considering the exemptions envisaged under Section 8(1)(j) and Section 8(1)(g) of the RTI Act.
In view of the foregoing, the CPIO is directed to first ascertain the exact status of the case from their Vigilance wing and only after confirmation of the fact that the enquiry has been concluded , he would provide a revised separate categorical reply along with the relevant available information which will suffice the information sought for by the Appellant(s) against each RTI Applications after redacting the names and identifying particulars of the officers, if any, which may figure in the notings/comments/inquiry report keeping in view the exemption clause of Section 8(1)(j) and 8(1)(g) of the RTI Act and can be severed in consonance with Section 10 of RTI Act.
The aforesaid replies/information shall be provided by the CPIO free of cost to each of the above mentioned Appellant(s) within 15 days from the date of receipt of this order under due intimation to the Commission.
Notwithstanding the aforesaid, the Commission adversely view the conduct of CPIO in not bothering to know the exact status of the enquiry from their concerned officer of Vigilance wing prior to the hearing. In this regard, the CPIO is cautioned to ensure in future that such lapses do not recur.
The appeal(s) are disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) हािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 5