Appellant has sought copies of record regarding his vigilance case etc. – CIC directed the PIO to clearly state whether the Enquiry Commission Report was sent to the Council for taking remedial action or not; enquiry by a JS to trace out the records
15 Oct, 2015
Information sought:
The appellant sought information on 5 points relating to file no. R-13105/12/2005-Vigilance, including the noting portion and correspondence with CVC, CBI, DoPT and Law Ministry.
Relevant facts emerging during hearing:
Both the parties are present. The appellant filed an RTI application on 25.08.2014, seeking the above information. ACPIO/US vide letter dated 15.09.2014 transferred the RTI application u/s 6(3) to Homeodesk, Dept. of AYUSH and Central Council of Homeopathy (CCH). He further informed the appellant that the certified copies of whole record of the Vigilance file cannot be provided u/s 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; of the RTI Act. PIO, CCH in his reply dated 01.10.2014 intimated the appellant that the recognition/permission to colleges as enlisted in his RTI application cannot be provided as the same are not available with the Council. CPIO/Director, Dept. of AYUSH in his reply dated 27.10.2014 stated that the information is nil. The FAA/Jt.Secy. in his order, observed as under:-
“… Vide earlier two orders in the case of (i) Sarvesh Kaushal Vs F. C.1. and others (Appeal Nos. 243/ICPB12006 and 244/1CP13/2006 dated 27 12.2006) and (ii) Shri Vinod Kumar Jain Vs. directorate of Central Excise Intelligence, New Delhi in the Appeal No. CIC/A TIA/2010/000969/SS, C1C also denied information in the similar cases where investigation was underway. In case no. (ii), the CIC also defined the term of investigation under Rule 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; of RTI Act. 2005 as under:- "We cannot import into RTI Act the technical definition of "investigation" one finds in Criminal Law. Here, investigation would mean all actions of law enforcement, disciplinary proceedings, enquires, adjudications and so on. Logically, no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken". In the instant case, charge-sheet has already been issued to Dr. Lalit Verma and the inquiry procedure is being initiated whereas the following documents have already been provided to Dr. Lalit Verma with the Memorandum No. R-13015112/2005-Vig. dated 14..08.2014 along with Articles of charge framed against Dr. Verma–
i. Justice Usha Mehra Report.
ii. SP's report in Case RC 4(A)/05/ACU-1X U/s 120-B IPC r/w section 7&13(2) r/w 13(1)d of PC Act, 1988 against Dr. S.P.S. Bakshi, President, CCH and others.
iii. Documents relating to:-
a) 34th meeting of CCH.
b) 35th meeting of CCH.
c) 93`d meeting of Executive committee of CCH.
d) 97th meeting of Executive committee of CCH.
e) 99th meeting of Executive committee of CCH.
iv. The Homoeopathy Central Council Act, 1973 The certified copies of relevant file R-13015/12/2005-Vig were denied to.Dr. Verma under Section 8(1)h of the RTI Act because the file contains opinions of various officers/authorities, location/custodian of documents based on which charges have been framed etc and disclosure of these facts may lead to impede the inquiry procedure: Since the application did not specify the exact file No, etc. it took some time to locate/trace the documents. After thorough search/interaction, when it was confirmed that the required information was not available with Vigilance Unit, the same was transferred to concerned Unit even after 5 days, just to facilitate the applicant to get the information. It was found fit to transfer the application to custodian of the documents/information even after 5 days, rather than denying the reply on reason of non-availability of information. AND WHEREAS, after examination as above, it has been found that the reply/information given by the Vigilance Section, Deptt. of AYUSH is as per the provisions of RTI Act, 2005. ”
The appellant stated that the charge-sheet issued against him was withdrawn on 14.08.2014; however, subsequently another charge-sheet was filed wherein certain correspondences have been referred to but the same has not been provided to him. He stated that his appointing authority is the Council and not the Govt. of India. He further stated that no reasons for invoking exemption u/s 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; has been given by the respondent authority while denying the information. The appellant apprised the Commission that the CBI had filed an affidavit before the High Court stating that nothing was found against him and in turn, recommended the Council to take action against him. He stated that he only wants the documents on the basis of which the charge-sheet was issued to him. The respondent from Vigilance Dept. stated that the matter was dealt in detail by the FAA. He stated that the copies of Enquiry Commission Report along with the report by the CBI of the preliminary enquiry and the CVC advice have already been provided to the appellant. The appellant stated that he has not received the CVC advice. The respondent stated that the same will be provided to him immediately.
The appellant stated that he has received none of the information which he sought in the RTI application. The respondent stated that since the appellant had requested for the complete file, the same was denied u/s 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; of the RTI Act. He stated that the file contains opinions of various officers/authorities, location/custodian of documents based on which the charges were framed, disclosure of which would impede the enquiry. He further stated that the appellant had not specified any document and that he could not pick and choose the same in order to provide information to the appellant. The respondent referred to the Commission’s decision in Sarvesh Kaushal Vs. FCI & Ors. and Vinod Kr. Jain Vs. Directorate of Central Excise Intelligence, New Delhi in this regard.
The respondent further stated that since the appellant had not specified the exact document, it took some time to trace the same. After thorough search, when it was confirmed that the required information was not available with Vigilance Dept., the RTI application was transferred to the concerned depts., to facilitate the appellant to obtain information. He further stated that the FAA in his order had found the information/reply given by the Vigilance section is as per the provisions of the RTI Act.
The appellant alleged that the report of the Enquiry Commission was signed only by two members and not three. He further alleged that the Enquiry Commission Report was not sent to the Council for taking remedial action, which should have been done as per Section 30 of Homeopathy Central Council Act. The respondent from Council stated that no such communication has been received from the Ministry. The respondent from Ministry stated that the said file not traceable. The appellant stated that the references made on point 5 of the RTI application feature in the charge-sheet issued to him. The respondent from Vigilance Dept. stated that the relevant files were seized by the CBI and since the CBI has remanded the matter back to Council, they can be requested to return the files. The respondent from Council in support of this argument produced the seizure memo giving details of 94 files which have been seized by the CBI. The respondent from the Council affirmed that further correspondence with the CBI will be made to obtain the relevant files so that information can be provided to the appellant, at the earliest, as per the provisions of the Act.
Decision:
The appellant has sought copies of whole record regarding his vigilance case, record relating to constitution of Enquiry Commission, whether the report was signed by all three members, etc. For the entire record of the appellant’s vigilance case, the ACPIO, initially, had denied providing the same u/s 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; . The respondent during the same while explaining the same has stated that since the disciplinary proceedings are still going on, the entire file cannot be provided. Moreover, the appellant has not specified the document he wants. The Commission concurs with the stand taken by the respondent authority and no action is to be taken on this point.
As for record relating to constitution of Enquiry Commission is concerned, the procedure is well established under Section 30 of the Homeopathy Central Council Act. The relevant portion of which reads as follows:–
“30. Commission of inquiry
(1) Whenever it is made to appear to the Central Government that the Central Council is not complying with any of the provisions of this Act, the Central Government may refer the particulars of the complaint to a commission of inquiry consisting of three persons, two of whom shall be appointed by the Central Government, one being a Judge of a High Court, and one by the Central Council, and such commission shall proceed to inquire in a summary manner and to report to the Central Government as to the truth of the matters charged in the complaint, and in case of any charge of default or of improper action being found by the commission to have been established, the commission shall recommend the remedies, if any, which are in its opinion necessary.”
The appellant, while referring to Section 30, alleged that the report of the Enquiry Commission was signed only by two members and not three. He also alleged that the Enquiry Commission Report was not sent to the Council for taking remedial action, which should have been done as per the Homeopathy Central Council Act. The aforesaid Section clearly states that whenever it is made to appear to the Central Government that the Central Council is not complying with any of the provisions of this Act, the Central Government may refer the particulars of the complaint to a commission of inquiry consisting of three members and that the such commission shall proceed to inquire the same and then report to the Central Government and in case of any charge of default or of improper action being found by the commission to have been established, the commission shall recommend the remedies, if any, which are in its opinion necessary. The respondent from Council has already informed that no such communication has been received from the Ministry and the respondent from Ministry had, initially, stated that the information is Nil, but as on date, the said file is not traceable, as per their submission.
The Commission directs CPIO/US to clearly state whether the Enquiry Commission Report was sent to the Council for taking remedial action or not. If the same cannot be done so, then an enquiry is to be conducted to trace out the untraceable record. The Secretary, Ministry of AYUSH is directed to appoint an officer, not below the rank of Jt. Secy. to conduct the enquiry. The enquiry shall be completed within 4 weeks of receipt of this order, under intimation to the Commission. The enquiry report shall be furnished before the Commission and a copy of the same shall also be furnished to the appellant.
Further, the reports of both the Enquiry Commission and CBI have already been provided to the appellant. Regarding the report being signed by two members and not three, the appellant is already aware of the fact. If he wishes to challenge the same, he can approach the Competent Authority. As far as the documents on the basis of which FIR with CBI has been filed, mentioned on Point 4, he has been provided the relevant documents.
For an ongoing investigation, the accused, appellant in the instant case, is free to access any information he considers necessary and appropriate for his defence and the Competent Authority, after considering the matter, would make a decision whether to abide by the accused’s request or not. This is a matter entirely between the jurisdiction and discretion of the Competent Authority. To allow an accused, access to a set of information, known to be related to an ongoing investigation, through action under RTI, would amount to pre-judging the investigation process and hence would impede the prosecution in progress In that sense, it would impede investigation u/s 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; . Since the respondent authority has readily agreed to provide the appellant a copy of the CVC advice, as desired by the appellant, the Commission directs that the same shall also be provided to the appellant, within two weeks of receipt of this order, under intimation to the Commission. For information on Point 5, the PIO, CCH vide letter dt. 01.10.2014 has already informed the appellant that the information is not available, but has referred to certain correspondences between the Ministry and the Council. Further, the Commission finds that the FAA in his order dt. 04.11.2014 has mentioned his designation as FAA/Jt.Secy. & APIO. However, the same has been explained by the respondet in his written submission dt. 03.08.2015 that the order was passed by FAA/Jt. Secy and that ‘APIO’ was a typographical error. The public authority is cautioned not to repeat the same in future and strictly adhere to the provisions of the Act. With these observations, the appeal is disposed of accordingly.
(Yashovardhan Azad)
Information Commissioner
Citation: Shri Lalit Verma v. Dept. of AYUSH, Central Council of Homeopathy (CCH) in F.No. CIC/YA/A/2014/003168