CENTRAL INFORMATION COMMISSION Appeal Nos. CIC/WB/A/2008/01019 & 1020 dated Right to Information Act 2005 Section 19

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1 CENTRAL INFORMATION COMMISSION Appeal Nos. CIC/WB/A/2008/01019 & 1020 dated Right to Information Act 2005 Section 19 Appellant: Respondent: Shri Sudhir Chopra Central Vigilance Commission (CVC) Decision announced: FACTS Pune. These are two appeals from Shri Sudhir Chopra at present located in File No. CIC/WB/A/2008/01019 By a request of Shri Sudhir Chopra, Joint Director, National Institute of Defence Estate (NIDE) sought the following information from CPIO, CVC: 1. Details of consultation made with CVC by DG DE/ MOD pertaining to charge sheet issued to the undersigned who is a Joint Director, National Institute of defence Estates Management under DG De Ministry of Defence. 2. The charges being totally false and baseless like signing letters Joint Director & not for Director, writing a letter to transparency Institutional to supply their free of cost publication titled Indian Corruption study 2005, what scrutiny/ checks was exercised to ensure that whistle blowers were not harassed and victimized. 3. What are CVC guidelines regarding time frame for deciding minor penalty case and what action has been taken/ proposed in the case mentioned at Sr. No. 1 above. 4. No. & details of cases where CVC initiated proceedings against administrative authorities for making false and baseless allegations against public servants to victimize and harass them during last five years. To this Shri Sudhir Chopra received a response dated pointwise as follows: Para (1) The case involving the applicant and other officers has not yet been finalized. Therefore, any disclosure of information at this stage may be used to influence the authorities/ proceedings which would impede the process of completion of disciplinary 1

2 proceedings. Therefore, the information is denied under section 8 (1) (h) of the RTI Act. Para (2) The disciplinary case in respect of the said charge sheet against the applicant has not yet reached to its logical conclusion. Disclosure of any information at this stage would impede the process of disciplinary proceedings as the information may be used to influence the authorities/ process. Therefore, information is denied under section 8 (1) (h) of the RTI Act. Para (3) A copy of circular No. 000/VGL/18 dated is enclosed. Further information is denied as stated under para 1 & 2 above. Para (4) The Commission does not maintain such data. Therefore, this information can t be given as it is not available. Because this response had denied the bulk of information sought by him, Shri Sudhir Chopra moved an appeal on before Shri V.K. Gupta, Appellate Authority, CVC, the gist of which was as follows: The refusal of information is totally arbitrary and illegal as no grounds have been given as to how disclosure would impede the process of completion of disciplinary proceedings. In fact Commission s own circular prescribing a time limit of two months has been violated. In this connection, your attention is drawn to Delhi High Court s judgement in W. P. (C) No. 3114/2007 in the matter of Bhagat Singh vs. Chief Information Commissioner & ors. Shri Sudhir Chopra further went on to indicate that no investigation is in process. Upon this, through an order of Shri Vineet K. Gupta directed as follows: 1. I have examined the documents/ files connected with the issues and find that the appellant is facing departmental action initiated by MOD. According to the appellant he had furnished his reply about a year back and case has not been finalized. In view of the fact that disciplinary proceedings are not finalized/ reached a logical conclusion, the CPIO's decision to deny information on point (1) and (2) is in order. CIC in the case of A. K. Goyal vs. DTC dated observed that Interfering with an already existing disclosure system under the disciplinary proceeding rules through action under the RTI Act had the potentiality of jeopardizing and affecting the proceeding under the Disciplinary Proceedings Rules. Disclosure of a range of information through the RTI Act to such public servants, which he 2

3 would not be entitled to receive under the Disciplinary Proceedings Rules, which he might be facing, would besides impacting the disciplinary proceeding, could lead to unforeseen consequences and actions. The provisions of the RTI Act are not to allowed to be used to critique the disclosure of information mechanism set up under another Act. I, therefore, uphold the CPIOs decision on points (1) and (2) to deny information to the appellant under section 8 (1) (h) of the RTI Act. 2. As regards the query of the appellant under point (3), I find that the same is in the nature of question and do not amount to seeking information. CIC in case No. CIC/AT/A/2006/00045 dated on the appeal of Dr. D. V. Rao, Superintendent (Legal), Department of Legal Affairs, Ministry of Law & Justice has held that The RTI At does not cast on the public authority any obligation to answer queries, as in this case, in which a petitioner attempts to elicit answers to his questions with prefixes, such as, why, what, when and whether. The petitioner s right extends only to seeking information as defined in section 2 (f) either by pinpointing the file, document, paper or record etc., or by mentioning the type of information as may be available with the public authority. Therefore, CPIO s reply to deny under section 8 (1) (h) is not correct. I am of the view that part of point (3) of appellant s appeal is not covered within the definition of information as it occurs in section 2 (f) of RTI Act and order accordingly. 3. Regarding point (4) of the RTI application. I find that such separate data/ information is not maintained in the Commission relating to details of cases where proceedings were initiated against authorities for making false and baseless allegations. CPIO s reply to the appellant is in order and I uphold the same. Appellant s prayer before us in his second appeal is as below: (i) Direction to CPIO to provide requested information as CVC has been mandated to protect the whistle blowers under resolution of GOI filed before Supreme Court in Satyander Dubey murder case. (ii) Penalty on CPIO and Appellate Authority. (iii) Compensation and cost to appellant (Rs ) because of mental torture and harassment undergone by him. CIC/WB/A/2008/01020 In this application of Shri Sudhir Chopra sought the following information from CPIO, CVC: 3

4 It is requested to provide details of three complaints pending with DGDE for more than six months as mentioned in para 2 (ii) of your letter. Please note that section 8 (i) (h) cannot be invoked to deny information in the light of judgment of Delhi High Court in the matter of Bhagat Singh vs. CIC in the WP(C) no 33114/2007. No reasons were given to explain how disclosure of information will speed hamper the process of investigation. In fact the disclosure of information will speed up the process of the investigation as the applicant will follow up the matter at all levels to ensure speedy investigation. This application was in reference to an earlier letter of received from CVC in response to RTI application of in which Shri Sudhir Chopra had sought the following information: (i) (ii) (iii) (iv) (v) No. & details of cases where CVC had recommended issue of charge sheet for major/ minor penalty against officers of defence Estates Dep t. during last five years. No. & details of cases where charge sheets have been issued as per advise of CVC & those were charge sheets not issued in respect of (i) above. No. & details of cases where enquiries have been completed against officers of Defence Estates officers and penalty recommended/ not recommended during last five years. No. & details of cases were no departmental proceedings initiated against officers of Defence Estates Dep t. even though CVC had called/ received report more than six months ago. No. & details of cases where departmental proceedings have not been initiated against officers of Defence Estates Dep t. even when criminal proceedings are going on for sale of public property and pocketing of proceeds (like DDG Vigilance). This information was refused by CPIO Ms. Shalini Darbari, Director, CVC by her letter of stating as follows: The details of three complaints pending with DGDE for more than six months cannot be provided, because these complaints are still under investigation. Shri Chopra then moved an appeal on before Shri V.K. Gupta, Addl. Secretary with the following plea: 4. Denial of information is in violation of the Constitution of India and also judgment of Delhi High Court in the case of Bhagat Singh vs. CIC and contempt of Court. 4

5 5. Keeping in view the above, it is requested to direct CPIO to provide the requisite information without further delay. Upon this Shri V.K. Gupta, Addl. Secretary took the following decision: I have perused the relevant record and I find that the CPIO had given the requisite information to the appellant to the extent available and admissible under RTI Act. The details sought by the appellant in respect of the complaint cases pending investigation with the DG, DE cannot be provided as the matters are yet to reach a logical end. I am of the view that disclosure of more information/ details would impede the process of investigation in these complaint cases. Further, CIC in the case of Shankar Sharma & Others vs. Income Tax in case No. CIC/AT/A/2007/000007, 10 & 11 dated observed that the term investigation sued in section 8 (1) (h) should be interpreted broadly and liberally, inclusive of all actions of law enforcement, disciplinary proceedings, enquiries, adjudications and so on. No investigation could be said to be complete unless it has reached a point where final decision on the basis of that investigation is taken. In view of CIC orders as above, I uphold the CPIO s decision to deny information under section 8 (1) (h) of RTI Act. is as follows: Appellant Shri Sudhir Chopra s prayer before us in his second appeal Direction to CPIO to provide correct information (ii) penalty on CPIO and appellate authority (ii) compensation and cost to appellant (Rs ). In her response to our appeal notice with regard to file No Ms. Shalini Darbari, Director CVC has submitted as follows: (a) (b) On para (i) the appellant has now made an appeal to the CIC stating that the CPIO has not provided the copy of the three complaints to the appellant which was denied on the grounds that these are still under investigation. It is submitted that the appellate authority of the Commission has also upheld the decision of the CPIO citing decision of the CIC in the case of Shankar Sharma & others vs. Income Tax in case No. CIC/AT/A/2007/000007, 10 & 11 dated The appeal before the CIC devoid of merits and deserved to be dismissed. On para (ii) & (iii) - It is submitted that as available information has been provided to the appellant and information regarding pending complaints has been denied to him under the relevant section of the RTI Act, 2005, there is no merit in his request either for imposition 5

6 (c) of penalty on CPIO/ Appellate Authority or for compensation and cost to the appellant. It may please be noted by CIC that public authority has till date received various applications from the appellant, which have been/ are being disposed, as per the provisions of the RTI Act. However, this has seriously diverted the limited resources of public authority affecting its core function. are present: Both appeals were heard together on October The following Appellant Shri Sudhir Chopra Respondents Shri P. S. Gupta, Advocate/CVC. Shri A. K. Gupta, Under Secretary. Appellant Shri Sudhir Chopra submitted that he had moved both applications as a Whistleblower to whom the CVC has failed to provide protection. He also submitted a copy of an order of of Shri J.P. Dhobal, Under Secretary to Govt of India on the disciplinary proceedings instituted against Shri Sudhir Chopra under Rule 16 of CCS (CC&A) Rules 1965 which has concluded with imposition of minor penalty of Censure upon Shri Sudhir Chopra, Jt. Director, NIDE. In this order the Under Secretary, Ministry of Defence has come to the following conclusion: AND WHEREAS, after taking into account the submissions made by the CO in his representation dated , Disciplinary Authority is of the view that the CO has a tendency to defy lawful orders, use offensive language in official correspondence, make un-substantiated allegations against his superiors and refuse to abide by official protocol and all these are available on verifiable records in the office of DGDE. In a nut-shell, the charges contained in the Charge- Memo are provide. Respondent Shri P.S. Gupta, Advisor, CVC, however submitted that at the time both the responses were given to the appellant, the matter was still under investigation and hence the disclosure was denied. They had not received the orders on MoD of and any further action in this matter will be taken after taking these orders into account. DECISION NOTICE 6

7 We find that in both these cases the matter had been referred for investigation to the MoD. What has been established in the hearing is that the CVC was not in continuous touch with the investigating authorities in the case referred to them. Respondent Shri P.S. Gupta submitted a copy of the file noting on the subject for our perusal wherein it is stated that there has been no feedback from the MoD and therefore, CVC must assume that the matter is still under investigation, the disclosure of which could impede this process. Although appellant Shri Sudhir Chopra has repeatedly brought to the notice both of CPIO and Appellate Authority the orders of Delhi High Court in Bhagat Singh Vs. CIC & Ors., no action has been taken on the basis of this decisions by the CPIO, CVC. The following ruling of Hon ble Ravindra Bhat J. of Delhi High Court in the above cited case is of relevance here: 12. 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 self. Under Section 8, exemption from releasing information is granted if it would impede the process of 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 1. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information. In other words, the appropriate authority must satisfy itself that, in fact, disclosure would impede the process of investigation. In the present case there has been a refusal without even attempting to establish the present position of the investigation before refusing it outright. In both cases, therefore, the information provided by CPIOs Shri A.K. Gupta and Ms. Shalini Darbari are out of line and both decisions of Appellate Authority Shri V.K. Gupta, Addl. Secretary in upholding these decisions are set aside. CPIO Shri P.S. Gupta will now re-examine both the cases in light of the order of MoD of and provide the information sought by appellant not 1 Underlined by us for emphasis 7

8 exempted from disclosure under sub-section (1) of Section 8 within 10 working days of the date of receipt of this decision notice, taking into account the ruling of the High Court of Delhi cited above. Appellant has also pleaded both for both penalty and compensation. Clearly there is no case of penalty in this regard because there has neither been delay in responding to the RTI application nor is there any evidence of incorrect or misleading information having been knowingly provided. On the other hand there has been a failure on the part of CVC to adhere to the law in that it has cited various decisions of the CIC to withhold disclosure while ignoring the decision of the Delhi High Court in WP No. 3114/07, Bhagat Singh Vs. CIC & Ors. which decision was also cited by appellant in both applications. However, we have no grounds for concluding the extent of any loss or detriment suffered in consequence by appellant Shri Sudhir Chopra. He may, therefore, submit his assessment of such loss to this Commission within 3 weeks of the date of receipt of this decision notice or by 11 th November, 2009 whichever is earlier to enable us to take a decision on the merit of his request. This Appeal now stands allowed subject to the above. Announced in the hearing. Notice of this decision be given free of cost to the parties. (Wajahat Habibullah) Chief Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission. (Pankaj K.P. Shreyaskar) Joint Registrar

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