Central Information Commission
S R Senapati vs Directorate General Of Income Tax, ... on 16 October, 2018
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/DGITV/A/2017/160016-BJ
Mr. S. R. Senapati,
....अपीलकता
/Appellant
VERSUS
बनाम
CPIO & Dy. DIT (Vig.),
O/o DGIT (Vig.), 1st Floor,
Dayal Singh Public Library Building, 1,
Deen Dayal Upadhyaya Marg, New Delhi 110002
... ितवादीगण /Respondent
Date of Hearing : 16.10.2018
Date of Decision : 16.10.2018
Date of RTI application Nil
CPIO's response 04.07.2017
Date of the First Appeal 10.07.2017
First Appellate Authority's response 03.08.2017
Date of diarised receipt of Appeal by the Commission 29.08.2017
ORDER
FACTS The Appellant vide his RTI sought information on 13 points regarding whether his name had been included in the "Agreed List/ ODI List" (officers having Doubtful Integrity), if yes, then copy of the "Material/ Complaint/ Basis", if any, reasons for his inclusion in the "Agreed List/ ODI List" and issues related thereto.
The CPIO vide its letter dated 04.07.2017 provided a point wise response, denying information on points 01, 03, 07 and 08 as per Section 8 (1) (h) of the RTI Act, 2005. Furthermore, information on points 06, 07, 10 and 11 was also denied u/s 8 (1) (g) of the RTI act. Regarding the remaining points, a reply with the words "Not Applicable" was provided. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 03.08.2017 while concurring with the response of the CPIO directed it to furnish information in respect to the inclusion of the Appellant in the ODI list within a period of 15 days from the date of receipt of the order.
HEARING:
Facts emerging during the hearing:Page 1 of 6
The following were present:
Appellant: Mr. S. R. Senapati (Addl. Commissioner);
Respondent: Mr. Diwakar Singh, DDIT (Vig.);
The Appellant reiterated the contents of his RTI application and stated that the information sought by him was incorrectly denied without citing any reasons for its denial. Explaining that he was seeking information pertaining to his own case for inclusion in the Agreed List/ ODI List, the Appellant submitted that despite the orders of the Hon'ble High Court in a similar matter in Sudhirranjan Senapati vs. Union of India, W.P. (C) 7048/ 2011 dated 05.03.2013 and the order of the FAA dated 03.08.2017, no information was provided to him, till date. In support of his contention, the Appellant relied on the decisions of the Commission in CIC/AT/A/2007/00823 dated 03.04.2008, CIC/CC/A/2014/000003/BS/10370 dated 19.05.2016, CIC/CC/A/2014/003031/BS/10634 dated 22.06.2016 and CIC/DGITV/A/2017/175969-BJ dated 04.12.2017. In its reply, the Respondent while referring to the reply of the CPIO/ FAA submitted that the Agreed List was prepared in consultation with officers of several departments including the CBI and was a confidential matter that was dealt with in strict secrecy and confidence in line with the extant guidelines on the subject matter. On being queried if the information exclusively pertaining to his own inclusion could be provided to the Appellant or not, the Respondent replied in the negative and submitted that carrying out such an exercise would render the essence of maintaining the confidentiality of "Agreed List" as meaningless. The Appellant contested the averments made by the Respondent and submitted that he was informed in writing by the department officials regarding his inclusion in the Agreed List. Moreover, it was argued that in the proceedings before the CAT, Pr. Bench New Delhi, the Respondent had made a declaration regarding his non-inclusion in the Agreed List. The Respondent categorically denied the claims of the Appellant and re-iterated that under no circumstances except in cases where any specific directions were issued by a Court/ Quasi Judicial Body/ Tribunal, did they disclose this information to any individual. On being further queried regarding the compliance of the decision of the Hon'ble High Court of Delhi in Sudhirranjan Senapati vs. Union of India, W.P. (C) 7048/ 2011 dated 05.03.2013 and the affidavit submitted before the CAT, no satisfactory response was offered by the Respondent.
The Commission observed that as per the provisions of Section 19 (5) of the RTI Act, 2005, in an Appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO. Neither the Respondent present during the hearing nor the CPIO responding to the RTI application, could justify their position as to how the disclosure of information would be in contravention to any of the provisions enshrined under Section 8 of the RTI Act, 2005 While observing that in order to deny information under any of the exemption mentioned under Section 8 (1) of the RTI Act, 2005, the Respondent is required to provide justification or establish the reason why such exemption was claimed, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP (C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:
"6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Page 2 of 6 Act. In the instant case, the Petitioner has been unable to discharge that burden. The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case."
Moreover, as per the provisions of Section 7 (8) (i) of the RTI Act, 2005, where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection. Furthermore, the Hon'ble Delhi High Court decision in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 it has held that:
"The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non-disclosure."
A reference can also be made to the decision of the High Court of Himachal Pradesh in the matter of Block Development Officer, Paonta Sahib vs. State Information Commission and Anr., CWP No. 6072 of 2012 dated 27.06.2018 held as under:
"9. It is vehemently urged by learned counsel for the petitioner that the impugned order suffers from vice of arbitrariness and, therefore, should be quashed and set aside. It was further argued that the petitioner on receipt of the application had transferred it to the concerned authorities and, therefore, there was no lapse on his part. He would also urge that the petitioner did not know the intricacies of the RTI Act and, therefore, he could not have been penalized.
10. I find no merit in the contention put-forth by the petitioner. It is more than settled that ignorance of law can be no excuse. Once the petitioner is designated as PIO, then all the more he is deemed to have knowledge and even otherwise the least that was required of him was to have acquainted himself thoroughly with the provisions of the RTI Act. Therefore, the explanation as sought to be put-forth by the petitioner at this stage clearly reflects the lackadaisical attitude of the petitioner. The only reasonable explanation for the cause of delay can be accepted and not lame excuses."
With regard to the exemption u/s 8 (1) (h) of the RTI Act, 2005, the Commission finds the following observation of the Hon'ble High Court Delhi in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 pertinent in this matter.
"13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Page 3 of 6 Section 8(1)(h) and other such provisions would become a haven for dodging demands for information."
A similar view was also taken by the Hon'ble High Court of Delhi in B.S. Mathur v. PIO in W.P. (C) 295 of 2011 dated 03.06.2011 and in Adesh Kumar v. UOI and Ors. W.P. (C) 3542/ 2014 dated 16.12.2014.
Moreover, the observation of the Hon'ble High Court of Delhi in Sudhiranjan Senapati vs. Union of India in W.P. (C) 7048/2011 dated 05.03.2013 is also relevant to the facts of the present case. In the said matter the Appellant had sought information regarding the certified true copies of all order sheet entries/ note sheet entries/ file notings of US, V&L/ DS/ V&L/Director, V&L/JS (Admn)/ Member (P&V)/ Chairman, CBDT/Secretary, Revenue/ MOS (R), if any, etc. pertaining to prosecution sanction by the Central Government u/s 19 (1) (a) of the Prevention of Corruption Act, 1988 and related issues. The Hon'ble High Court of Delhi in its decision had held as under:-
"12.1 It appears in that case the petitioner, who was being criminally prosecuted for having fraudulently reduced the quantum of excise duty to be paid by an assessee, while passing an adjudication order, had sought information with regard to: note sheets; correspondence obtaining qua the material in the file of the CBI; correspondence in the file of the CVC pertaining to the matter; and correspondence in the file of the Department of Vigilance, CBES.
12.2 A close perusal of the nature of information sought seems to suggests that much of it may have been material collected during the course of investigation, the disclosure of which could have perhaps hampered the prosecution of the petitioner.
13. Therefore, in my view, in such like cases when, the State takes a stand the information cannot be disclosed; while dilating on its stand in that behalf, the State would necessarily have to, deal with the aspect as to how the information sought, is of such a nature, that it could impede prosecution. Much would thus depend, on the nature of information sought, in respect of which, a clear stand needs to be taken by the State, while declining the information. The burden in this regard is on the State [see B.S. Mathur Vs. Public Information Officer of Delhi High Court, 180 (2011) DLT 303]
14. With the aforesaid observations in place, the writ petition is allowed. The order of the CIC is set aside. The respondents will supply the information sought for by the petitioner within three weeks from today, after redacting names of officers who wrote the notes or made entries in the concerned files."
It was also observed that as per Section 10 of the RTI Act, 2005 all such information relating to the name and designation of officers in the note sheets/ correspondences could be severed to provide the remaining information. In this context, a reference was made to the decision of the Page 4 of 6 Hon'ble High Court of Delhi in its decision dated 7/10/2013 [W.P. (C) 4079/2013 Union Public Service Commission vs. G S Sandhu] wherein while observing that denial of notings altogether was not justified directed to block the name, designation or any other indication which disclose or tend to disclose the identity of author, it was held as under:
"11. In my view, the apprehension of the petitioner that if the identity of the author of the file notings is revealed by his name, designation or in any other manner, there is a possibility of such an employee being targeted, harassed and even intimidated by the persons against whom an adverse noting is recorded by him on the file of UPSC, is fully justified. Though, ultimately it is for the members of the UPSC who are to accept or reject such notings, this can hardly be disputed that the notings do play a vital role in the advice which UPSC ultimately renders to the concerned department. Therefore, the person against whom an adverse advice is given may hold the employee of UPSC recording a note adverse to him on the file, responsible for an adverse advice given by UPSC against him and may, therefore, harass and sometime even harm such an employee/officer of UPSC, directly or indirectly. To this extent, the officers of UPSC need to be protected. However, the purpose can be fully achieved by blocking the name, designation or any other indication which would disclose or tend to disclose the identity of the author of the noting. Denying the notings altogether would not be justified when the intended objective can be fully achieved by adopting such safeguards."
Furthermore, the Hon'ble High Court of Delhi in the decision of KVS v. CIC and Anr. W.P.(C) 6892/2009 dated 15.09.2009 while upholding the decision of the Commission had held as under:
"The only objection raised by the petitioner against the supply of statement of witnesses was under Section 8(1)(g) of the Right to Information Act, 2005. The said provision stipulates that information disclosure of which would endanger life and physical safety of any person or identity, the source of information or assistance given in confidence for law enforcement and security purposes need not be supplied. The Information Commissioner keeping in mind Section 8(1)(g) of the Right to Information Act, 2005 has directed that the name of the witnesses need not be disclosed to the respondent No.2.
In fact the order passed by the Information Commissioner seeks to rely upon section 10, which permits withholding of certain portions of information by applying severability principle. The order of the Information Commissioner takes care of the apprehension of the petitioner."
A similar view was also taken by the Hon'ble High Court of Delhi in the matter of Union of India vs. D.N. Kar in W.P. (C) 4056 of 2008 and CM Nos. 7869 and 10885 of 2008 dated 14.09.2010, wherein it was held as under:
"11. In the considered view of this Court, the above submissions are misconceived. The Respondent is seeking information only about himself being included in the Agreed List. There is no question of the Department invoking the right to privacy of the Respondent to deny him information concerning him which is held by them. The apprehension that such information may tarnish the reputation of the Respondent is also misconceived. It is also the Respondent himself who is asking the information on the material on the basis of which his name was included in the "Agreed List". Moreover, the period during which the Respondent's name was included in the "Agreed List" has long come to an end. The Page 5 of 6 period during which he was kept under surveillance is over. By disclosing to the Respondent the material on the basis of which his name was included in the Agreed List, there is no danger of, the purpose of placing him under surveillance, being defeated.
12. As regard inputs that might have been given to the Department by certain persons in a fiduciary capacity, this Court finds that the CIC has, in its impugned order dated 3rd April 2008, adequately accounted for such contingency. It has been directed by the CIC that the CPIO is free to withhold the names of the officials who might have provided critical inputs and recommended the inclusion of the Respondent's name in the Agreed List. Further, the CPIO has also been permitted by the CIC to withhold the name of the complainant, if any, in the matter.
13. This Court concurs with the view expressed by the CIC that if the Respondent feels that his name was wrongly included in the Agreed List for three years continuously and that such inclusion is indeed a stigma on his career and, therefore, he wishes to prove his innocence, he cannot be deprived of such an opportunity by withholding the material on the basis of which his name was so included. Adequate safeguards have already been provided for by the CIC in its impugned order. In the circumstances, there can be no justification for the Petitioner to deny the Respondent the information sought by him."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the aforesaid judgments, the Commission instructs the Respondent to provide the information relating to the Appellant's own matter after obliterating/ severing the details of the third parties and name and designation of officers in the note sheets/ correspondences as per the provisions of the RTI Act, 2005 within a period of 15 days from the date of receipt of this order.
The Appeal stands disposed with the above direction.
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: 16.10.2018
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