CIC: The disciplinary proceedings are continuing since 2008 & the respondent has failed to show reasons as to how disclosure of information would result in impeding the ongoing proceedings; No blanket exemption of Section 8(1)(h) could be invoked
4 Jan, 2017Date of Hearing : 19.09.2016
Date of Decision : 05.12.2016
Since common parties are involved in the present appeals, they are being clubbed together for hearing and disposal to avoid multiplicity of the proceedings.
Relevant facts emerging from appeal:
Case No. RTI filed on CPIO reply First appeal filed FAA order 2nd appeal filed on
1489 05.01.2015 03.02.2015 10.02.2015 No order passed 02.06.2015
2214 23.03.2015 22.04.2015 27.04.2015 14.06.2015 28.10.2015
0673 22.11.2014 19.12.2014 03.01.2015 12.02.2015 19.03.2015
0864 01.12.2014 18.12.2014 05.01.2015 12.02.2015 20.03.2015
2269 24.03.2015 24.04.2015 02.05.2015 04.06.2015 28.10.2015
CIC/YA/A/2015/001489
CIC/YA/A/2015/002214
Since both the appeals are identical in nature, they shall be disposed of through a common decision.
Information sought and background of the case:
Vide RTI application dated 23.03.2015 and 02.01.2015, the appellant sought notesheets, correspondences etc. contained in two vigilance files No. C- 13021/6/2011-Vig & No. C-14019/4/2013-Vig under 14 & 20 points respectively.
The CPIO replied as follows:
The information sought cannot be provided as the matter relates to an ongoing investigation/examination and disclosure of which would impede the process of investigation/ examination and hence, exempted disclosure under Section 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; 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, 2005.
The appellant preferred first appeal whereupon the FAA upheld the reply of CPIO interalia observing:
2. I have looked into the matter and gone through the relevant records. It is noted that your RTI application dated 23.03.2015 was received in the Ministry on 25.03.2015. The CPIO has given the required information as per the RTI Act on 22.04.2015 which is well within the prescribed time. Further, the CPIO has furnished the information as per the available records held by them.
3. As per the available records and as both the cases are at different stages of disciplinary proceedings, the information was denied under 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; 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, 2005. In the case of file no. C-13021/6/2011-Vig, the IO report is awaited and in case file no. C-14019/4/2013-Vig the charged officers’ reply in the charge sheet has been received and is being under examination. Therefore, since the disciplinary proceedings are presently pending, information at this stage would impede the process of investigation/prosecution of the charged officer.
4. As per the records, the CPIO has already furnished available information held by him vide his letter dated 22.04.2015 and denial of information by the CPIO under Section 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; 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 is in order. Hence your appeal is accordingly disposed of with this order.
Feeling aggrieved, the appellant approached the Commission.
Relevant facts emerging during hearing:
Both the parties are present and heard. The appellant states that the 2 files referred to in the respective RTI applications concern the alleged illegal allotment of sheds to a private firm in 2008 thereby causing a loss of Rs. 6.63 Cr. to the Govt. exchequer due to favouritism by the then Traffic Manager, Mumbai Port Trust. It is the contention of the appellant that the delinquent officer allotted the shed to even other private entities in violation of rules thereby securing undue gains to the private firms. Per contra, the CPIO states that the departmental/ vigilance proceedings are pending in the aforesaid context and the any disclosure of information would impede the process of prosecution of delinquent officers. However, the appellant draws the attention of the Commission towards the fact both the cases relate to year 2008 and there is inordinate delay in the conclusion of investigation/ disciplinary proceedings.
CIC/YA/A/2015/000673
CIC/YA/A/2015/000864
Information sought and background of the case:
Vide two RTI application dated 22.11.2014 & 01.12.2014, the appellant sought multifaceted information regarding one vigilance file no. C- 13019/13/2008-Vig.
The CPIO denied information as relating to the file under reference invoking Section 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; 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, 2005. The FAA upheld the decision of CPIO.
Feeling aggrieved the appellant approached the Commission.
Relevant facts emerging during hearing:
Both the parties are present and heard. The appellant states that the files referred to in the respective RTI applications relate to the alleged lapse on the part of two officers of Vishakhapatnam Port Trust (VPT) in evaluation of financial bids relating to award of a tender. He states that CVC as well as CBI advised the Chairman, VPT to proceed against the two delinquent officers and the same is pending since 2006. It is the contention of the appellant that despite concurring advice by CVC & CBI, the VPT administration went on to close the case against one of the delinquents who was offered higher responsibility as Traffic manager in VPT while the other superannuated in 2012. In this factual backdrop, the appellant asserts for placing information relating to the fate of enquiry against the delinquents, in larger public interest. The appellant relies on the decisions of the Hon’ble Supreme Court in S.P. Gupta v. UOI and Babu Ram Verma v. State of U.P. to augment his contention. Per contra, the CPIO submits that disclosure of information at this stage would be counterproductive and impediment ongoing proceedings. Upon a query from the Commission as to why the proceedings are inconclusive despite inordinate delay, the CPIO fails to offer any plausible explanation.
CIC/YA/A/2015/002269
Information sought and background of the case:
Vide RTI application dated 24.03.2015, the appellant sought multifaceted information regarding one vigilance file no. C-13019/5/2012-Vig.
The CPIO denied information as relating to the file under reference invoking Section 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; 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, 2005, as follows:
The report dated 10.12.2014 received from Chairman; Visakhapatnam Port Trust (VPT) in the matter is under examination. Since, there is some action contemplated in the matter and the decision of the competent authority is awaited at this stage, the information is denied under Section 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; 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, 2005. The FAA upheld the decision of CPIO.
Feeling aggrieved the appellant approached the Commission.
Relevant facts emerging during hearing:
oth the parties are present and heard. The appellant states that the files referred to in the respective RTI applications relate to the alleged irregular allotment of plots for dumping iron ore to a private entity without calling for public tenders or public auction by traffic department, VPT in derogation of the norms for allotment of public resources. He states that after investigation, the Chief Vigilance Officer, VPT recommended action against the then Sr. Deputy Traffic Manager, VPT. He states that the culpability of the delinquent was also endorsed by CBI Visakhapatnam. It is the contention of the appellant that irregular allotment of public resources warrants public scrutiny and inordinate delay in concluding the proceedings against the delinquent point towards the callous attitude of VPT in curbing corruption of its officers. Per contra, the CPIO states that the matter under reference is pending before the competent authority for examination. Upon a query from the Commission as to why the matter could not be concluded despite elapse of more than 4 years, the CPIO blames administrative delay and states that the proceedings would be concluded soon.
Decision:
The issue in hand is no longer res integra. This bench while disposing a batch of appeals preferred by the appellant in file no. CIC/SS/A/2013/000619-YA observed as:
The question before the Commission is whether disclosure of requested information would impede the process of investigation or apprehension or prosecution of offenders. It would be expedient to extract clause (h) of section 8 (1) which reads as follows:-
“8. Exemption from disclosure of information- (1) notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- …
(h) Information which would impede the process of investigation or apprehension or prosecution of offenders;”
From a plain reading of the above provision, it follows that Section 8(1) (h) of the RTI Act exempts disclosure of information which would impede the process of investigation or apprehension or prosecution of offenders. Merely because the process of investigation or apprehension or prosecution of offenders is continuing, the bar stipulated under Section 8(1) (h) of the RTI Act is not attracted; it must be clearly established by the PIO that disclosure of the information would impede the process of investigation or apprehension or prosecution of offenders. In this regard, it would be relevant to note that Ravindra Bhat, J. of the High Court of Delhi in Bhagat Singh v. Chief Information Commissioner and Ors. (WP(C) No. 3114/2007) stated that:
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, Section 8(1) (h) and other such provisions would become the haven for dodging demands for information.” The division bench of Delhi High court presided by Hon’ble the Chief Justice of Delhi High Court in case of Director of Income Tax (Investigation) and Ors. Vs. Bhagat Singh and Anr (LPA 1377/2007) also observed that:-
“8.... Under Section 8(1) (h) information can be withheld if it would impede investigation, apprehension or prosecution of offenders. It is for the appellant to show how and why investigation will be impeded by disclosing information to the appellant. General statements are not enough. Apprehension should be based on some ground or reason....”
In Sudhiranjan Senapati Vs. Union of India and Ors. (WP (C) 7048/2011), the Delhi High Court had observed that: -
“13. Therefore in my view, in such like cases when, the State takes a stand the information can not 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 stand taken by CPIO for declining the information in present case is that if names of the officer involved in processing the matter are disclosed at this stage, they may be subject to pressure and harassment and may be prevented from expressing their view frankly and impartially in an objective manner. The stand of the PIO as stated above is neither in consonance with the rulings of the High Court nor in agreement with the provision of section 8 (1) (h) of the Act.
Moreover, a careful reading of the section reveals that the word used in section 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; 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; is “would” which implies that there should be definite material information in the hands of the CPIO to delineate that disclosure of the information will impede the process of investigation. Mere apprehension is not enough. If the intent of the legislature was to deny information on the basis of apprehension it would have used the word “could”. In the present case since the express intention of the Legislature is clear from the very preamble of the Act, it is not permissible to speculate whether the word “would” includes “could”. Moreover, while it is the duty of the Commission to harmonise the various provisions of the Act as enacted by the legislature but it certainly is not the duty of the Commission to stretch the words used by the legislature to fill in gaps or omissions in the provisions of the Act.
In view of above, the Commission does not accept the grounds taken by the respondents for denial of information under Section 8(1) (h) of the RTI Act. The Commission directs the respondents to provide the information to the appellant, to the extent not already provided in relation to the six RTI applications being considered in these appeals, within two weeks of receipt of this order, under intimation to the Commission, only after redacting names of officers who wrote the notes or made entries in the concerned files or against whom action was recommended.
In the present set of facts, the disciplinary proceedings are continuing since 2008 and the respondent has failed to show cause concrete reasons as to how disclosure of information would necessarily result in impeding the ongoing proceedings. To put it short, no blanket exemption of Section 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; 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; as sought by the CPIO could be invoked in the present appeals.
Another facet of the issue in hand poses a question before the Commission. Whether details of ongoing proceedings against employees of a State entity can be disclosed? Wouldn’t it be against the presumption of innocence of employees charged with the allegations of corruption & favouritism? The answers to the questions cannot be generalized. In the set of present facts, the proceedings are inconclusive for last almost 8 years. Continuation of vigilance proceedings for such long duration defeats the very purpose of its initiation. If the proceedings are allowed to continue ad infitum, the same would be prejudicial to the national interest as well to those under scanner. Abnormally long investigations do not serve anybody’s purpose. Time bound and result oriented enquires are in furtherance of larger public interest. In the present set of facts, the larger public interest outweighs & marginalises any other conflicting personal interest since every of these cases relate to charges of corruption. The officials under enquiry were discharging public functions and thus, the collective right of citizenry to lift the veil and look inside the functions of VPT, assumes paramount significance. It is thus, in larger public interest that the Commission in inclined to direct disclosure of the information.
Accordingly, the orders of FAA are set aside and the CPIO is directed to furnish only:
a) Statement of charges/imputations levelled against the respective officials in each case.
b) Entire record of further proceedings.
c) Information regarding the present status of each enquiry/ investigation.
It is clarified that the relevant files & any other information beyond the aforesaid shall not be disclosed. While furnishing information, the CPIO shall redact names of officers making comments/notings so as to obliterate their identity. The order shall be complied within 4 weeks of receipt.
Let a copy of this order be placed before the Secretary, Ministry of Shipping, GoI for information.
The appeals are allowed accordingly.
(Yashovardhan Azad)
Information Commissioner
Citation: Shri Rednam Deepak v. CPIO, Ministry of Shipping in F. No. CIC/YA/A/2015/001489 CIC/YA/A/2015/002214 CIC/YA/A/2015/000673 CIC/YA/A/2015/000864 CIC/YA/A/2015/002269