CIC: Citizenry has a right to lift the veil & know about the state of discipline & order prevailing amongst the employees - CIC: Names of officials facing departmental action shall not be disclosed acknowledging the presumption of their innocence
4 Jul, 2017CIC says:-
The Commission is surprised to encounter such ignorance of RTI Act as prevailing in the Vigilance Department, SDMC
The citizenry has a right to lift the veil & know about the state of discipline and order prevailing amongst the employees of a public authority
Publish the following classes of information on its web portal:
(a). Year wise Numeric data of RDA cases pending & disposed;
(b). Rank/Post held by the charge sheeted employee;
(c) Details of outcome in terms of finding ie. exoneration or found guilty.
It is clarified that names of officials facing departmental action shall not be disclosed acknowledging the presumption of their innocence. The public authority shall assign each case with a unique number reflecting the year of its origin.
Information sought and background of the case:
Vide RTI application dated 04.02.2016 addressed to PIO/Vigilance Department of SDMC sought the following information:
1. Number of Regular Departmental Action (RDA) cases initiated against officers/officials in the Vigilance Department of SDMC w.e.f. 01.01.2010 to 31.01.2016
2. Number of times, their case was placed before Suspension Review Committee during the period mentioned above and copies thereof.
3. Certified copy of reply submitted to CIC in compliance of their order dated 12.06.2015
The CPIO replied thereby furnishing point wise reply as:
1. Being a third party information sought is not for large public interest, hence information cannot be given.
2. Photocopy enclosed.
3. Copy enclosed reply to be given by West Zone.
Dissatisfied with the response received from the CPIO, the appellant filed first appeal. The FAA upheld the response of CPIO. Feeling aggrieved, the appellant approached the Commission.
Relevant facts emerging during hearing:
Both the parties are present and heard. The appellant states to have sought the information in public interest. The appellant states to be content with the information received on point no. 2. The limited grievance of the appellant is w.r.t. denial of information on point no. 1. Per contra, the CPIO seek exemption under Section 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. qua point no. 1. He states that disclosure of such data would not serve any larger public interest. On query no. 3, he states that details of compliance of CIC decision were meant to be furnished by West Zone and the same did not pertain to Vigilance department. However, upon query from the Commission, the respondent candidly accepts that the RTI application was not transferred to the custodian of information, while the same ought to have been transferred as per Section 5(4) of the RTI Act.
Decision:
After hearing parties and perusal of record, the Commission notes with concern that the PIO has furnished reply to query no. 1 on a complete misreading of the RTI Act. Clause (j) of Section 8(1) of the RTI Act, 2005 reads as:
(j) information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information
Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
The PIO failed to appreciate the true import of the query. The appellant merely sought numeric data of the Regular Departmental Action initiated by the public authority for a specified time period. Revelation of such numeric data cannot invade privacy of anyone by any stretch of argument. Even for the sake of assumption the contention of PIO is accepted, the operation of proviso to clause (j) clarifies that information which cannot be denied to Parliament or state legislature shall not be denied to any person. Even by the foregoing reasoning the information sought qualifies for disclosure.
The Commission takes note of a similar query raised in the Lok Sabha as un-starred question, wherein the MoS Home had placed the numeric data of RDAs relating to trifurcated MCD before the house. The same is reproduced hereinafter:
GOVERNMENT OF INDIA
MINISTRY OF HOME AFFAIRS
LOK SABHA
UNSTARRED QUESTION NO: 2594
ANSWERED ON: 09.12.2014
CORRUPTION IN MCD
ABHIJIT MUKHERJEE
Question: Will the Minister of HOME AFFAIRS be pleased to state:-
(a) whether several cases of corruption have been reported in the Municipal Corporation of Delhi (MCD);
(b) if so, the total number of such cases reported and the action taken against the guilty during each of the last three years and the current year;
(c) the number of cases solved/unsolved and the steps taken to solve all the pending cases during the said period; and
(d) the steps taken to weed out corruption in MCD?
ANSWER
MINISTER OF STATE IN THE MINISTRY OF HOME AFFAIRS (SHRI HARIBHAI PARATHIBHAI CHAUDHARY)
(a): Yes, Madam. The complaints are received in North, South and East Delhi Municipal Corporations (DMCs) on corruption.
(b) & (c): In North DMC, during the period from September, 2012 till date, 2354 number of complaints have been received. Most of these complaints are of general nature having no discernible vigilance angle and hence were referred to the concerned Deputy Commissioner of 6 zones for necessary action at their end. The complaints having vigilance angle have been investigated and some are still under investigation. During investigation by the Vigilance Department, 161 RDA cases were initiated against the 237 officials.
In South DMC, the complaints received from various sources having vigilance angle have been investigated and some are under investigation. During investigation by the Vigilance Department, 105 RDA cases have been initiated against 165 officials.
In East DMC the Vigilance Department came into existence in January, 2013 consequent upon trifurcation of MCD. During the period January- 2013 till date 6786 number of complaints were received. Most of these complaints were/are of general nature having no discernible vigilance angle and hence were referred to the concerned Dy. Commissioners of 02 Zones for necessary action at their end. The Complaints having vigilance angle were investigated and some are still under investigation. During investigation by the Vigilance Department 82 RDA Cases were initiated against the 124 officials.
In this regard, the year-wise details in respect of North, South and East DMCs is attached as Annexure ‘A’.
(d): Surprise inspection/preventive checks are carried out by the Head of the Departments including Vigilance Department and directions are issued to officers as and when necessary. Applications for various licenses and booking of community halls/ parks can be made online. Birth & Death Certificates are also being issued online. The process for grant of various licenses has been simplified. Applications for sanction of building plans can be submitted online. All tenders are invited and processed online. In addition, seminars are also organized during Vigilance Awareness Week on various Vigilance topics including corruption.
In light of the foregoing, the FAO is set aside. The CPIO is directed to furnish complete information on point no. 1. The CPIO shall access information on point no. 3 and furnish the same to appellant. The present order shall be complied within 2 weeks of receipt.
The Commission is surprised to encounter such ignorance of RTI Act as prevailing in the Vigilance Department, SDMC. The Commission recommends that the functionaries designated under the RTI Act must be trained and the habit of judicious thinking must be inculcated in them.
The present case has drawn attention of the Commission towards the larger problem. The citizenry has a right to lift the veil & know about the state of discipline and order prevailing amongst the employees of a public authority. Such right assumes pivotal significance when the public authority is a civic body of the National Capital shouldering wide horizons of functions which are essentially citizen eccentric. The state of inordinately delayed Departmental Actions in the erstwhile MCD (now North DMC, SDMC, EDMC) is no secret. Delay in such cases is opposed to justice. While the delinquents often go unpunished since due to delay in concluding Departmental actions, often courts of law tend to pardon them; on the other hand innocent employees are denied quick justice and are subjected to a long dint of harassment. The need of acting expeditiously in Departmental actions and the hazards of delayed proceedings are beautifully summarised by Justice Vikramjit Sen in the case of Shri M.L. Tahiliani vs. D.D.A. MANU/DE/0668/2002. Relevant extract is reproduced hereinafter:
15. A distillation of the plethora of precedents would yield the results that the Court must balance public interest against the rights of the individual. Neither should be scarified at the alter of the other. While public servants ought to be enduringly answerable for the manner in which they discharge their duties, they are not disentitled from claiming the protection of the tenets of natural justice. However this longer period of accountability attached to public office should not become a test of their endurance. The normal rule is that the initiation and the culmination of an enquiry should be diligently expeditious, since unexplained and/or unjustified delay would invalidate the exercise at its every stage. While ‘zero tolerance’ would apply to trivial/minor misconduct, latitude would increase with the gravity of the offence. Protraction of proceedings, deliberate or derelictional, must be abjured. It is needless to explain that where the delay is caused by the delinquent, the Enquiry must be allowed to continue to its end. Once the alleged misconduct is detected the process must proceed with all reasonable dispatch. A late detection should not render the Enquiry irregular. Public interests would be served by a quick and speedy end to the Enquiry; it is not cynical to profess the view that Enquiries are deliberately stretched in order to protect the accused or to ensure that a pandora’s box is not opened, revealing a larger conspiracy and accountability. Permitting inordinate delay runs counter to the common weal. Most often it is deliberately planned so that the truth does not surface. Enquiries usually commence with a defalcation becoming a public scandal, and delay directly results in its hushing up, since public memory is infamously short. If Courts stringently quash delayed enquiries the result would be their expeditious conclusion since otherwise the Department, which is already embarrassed by the scandal, would be rocked by failure to prove or disprove the charges. That the protraction of proceedings may be a concerted effort of all concerned can be gathered from the needless reference of moot of the cases to the Central Vigilance Commission (CVC) even though the DDA has its own vigilance machinery. In condoning delay, the Court tends to allow uncomfortable truths to be swept under the carpet into obscurity. Where enquiries coincide with the promotional rights/chances of the officer charged with misconduct, the Judge must be alive to the likelihood of it being intentional and motivated, rather than coincidental and truthful. While deciding a writ petition challenging the legal propriety of continuance of Inquiry proceedings on the grounds of inordinate delay, the Court is not expected to assess the relative strengths of the prosecution’s case and/or of the defense. That is essentially the function of the Inquiry. However, once substantial delay has transpired, what the Court must carefully examine is whether, even on a cursory perusal of the Charges, the case is worthy of continuance. This is primarily for the reason that where the departmental proceedings have become inordinately protracted the requirement of conducting a speedy trial has been violated but also that it would be fair to infer from the delay that the Enquiry was initiated and continued for some oblique motive. Charge-Sheets and Enquiry can never be permitted to be misused as tools for a witch-hunt or an inquisition, or a means to steal a march in promotions. Where progress to the next higher post is impeded because of the initiation of a Charge-Sheet or Enquiry, innocence must be zealously presumed until guilt stands established. This approach is definitely conducive for proper administration, including that of justice.
[Emphasis added by Commission]
In the considered opinion of the Commission, the citizenry has a right to know about the human capital of municipal authorities and the same shall be in best interest of transparency & administrative reform. Accordingly, the Commission in exercise of powers conferred under Section 19(8) directs the respondent public authority South Delhi Municipal Corporation to publish the following classes of information on its web portal:
(a). Year wise Numeric data of RDA cases pending & disposed;
(b). Rank/Post held by the charge sheeted employee;
(c) Details of outcome in terms of finding ie. exoneration or found guilty.
It is clarified that names of officials facing departmental action shall not be disclosed acknowledging the presumption of their innocence. The public authority shall assign each case with a unique number reflecting the year of its origin. No other details other than enumerated herein shall be disclosed. It is further clarified that such data shall be updated on a monthly basis, as far as practicable.
These directions shall also apply mutatis mutandis to North Delhi Municipal Corporation, East Delhi Municipal Corporation and New Delhi Municipal Council. Let a copy of the present order be sent to respective Commissioners/ Chairperson of the public authorities. All the respective public authorities shall comply with the aforesaid directions within 3 months of receipt of this order.
Compliance report must reach the Commission by 30.10.2017 positively.
(Yashovardhan Azad)
Information Commissioner
Citation: Mrs. Saroj v. Vigilance Department South Delhi Municipal Corporation in F. No.CIC/SDMCC/A/2016/293826, Date of Decision : 14.06.2017