CIC noted that the Respondent was able to substantiate their stand for non-disclosure of information - CIC instructed to convene periodic conferences to educate the officials about the provisions of the RTI Act for effective discharge of its duties
5 Feb, 2018O R D E R
FACTS:
The Appellant vide his RTI application sought information on 15 points regarding the list of cases which were registered against the officer/staff at their office along with sections of IPC/PC Act, the name of the officers who had been directed to support the investigation of investigating agency and copy of the letter thereof, the bill number of four consecutive months of pay of the officer, the date of joining and the copy of the joining report of the officer, all the communications between the department and investigating agency and issues related thereto. The CPIO vide its letter dated 28/30.09.2016 denied disclosure of information 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, 2005 since the departmental inquiry was pending at that stage. Dissatisfied by the reply of the CPIO, the Appellant approached the FAA. The order of the FAA, if any, is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Amit Kumar Srivastava (Executive Assistant, Customs, Jaipur) through VC;
Respondent: Mr. Hemant Hingonia, DC/CPIO and Mr. Mathew P. J., Superintendent (RTI) through VC;
The Appellant reiterated the contents of his RTI application and stated that information w.r.t Point 02, as furnished by the CPIO was incorrect and no information had been provided w.r.t Points 03 to 14. Moreover, it was informed that the FAA had passed an order, with a considerable delay of time on 24.03.2017 whereby the response of the CPIO was upheld. It was further clarified that the information sought by him in the instant RTI application pertained to his individual case and since his suspension being revoked now, the information ought to have been provided to him, at this stage. It was further alleged that the apprehension of the CPIO that the information could impede the process of departmental inquiry/ criminal proceedings was wrong since all the suspension proceedings had been completed and now it was a matter of record and the information sought pertaining to the copies of the note sheets were regarding his pay, increment, etc. In response, the Respondent submitted that the relevant file pertaining to the Appellant had been transferred to the concerned Section, consequent upon the transfer of the Appellant and therefore they would not be in a position to provide further details in the matter. On a query from the Commission regarding the non-transfer of the RTI application/Second Appeal to the relevant Section, the Respondent could not provide a satisfactory response and feigned ignorance of the relevant provision of Section 6(3) of the RTI Act, 2005. However, the response of the CPIO was reiterated that the information sought could not be furnished 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, 2005 as disclosure of information at this stage could impede the process of investigation.
Moreover, explaining the background of the matter, the Respondent vide his oral and written submission dated 15.01.2018 submitted that a case was registered in ACU(IV) Branch of CBI, New Delhi on 05.05.2012 against the Appellant under relevant Sections of IPC/PC Act on allegation of criminal conspiracy of cheating by impersonation, demand of illegal gratification and misuse of his official position. Thereafter, an investigation was carried out by CBI in this regard and the Appellant was requested to join the said investigation. In the meanwhile, the Appellant was transferred and relieved from CE Jaipur-II with directions to join in Customs. However, the Appellant was taken into custody by the CBI in a case registered with CBI/ACU(IV) and was remanded for judicial custody by the Hon’ble Judge of CBI Special Court on 25.05.2012. Thereafter, the Hon’ble ACMM, Patiala House Court, New Delhi released the Appellant on bail vide order dated 23.08.2012 on a personal bond and surety bond of Rs, 50,000/-. Moreover, it was explained that the Appellant was under suspension w.e.f 24.05.2012 under the relevant provisions of CCS Rules, 1965 vide order dated 31.08.2012 whereby his suspension was reviewed by the Review Committee from time to time. Clarifying the present scenario in the matter, it was submitted that, as informed by the Supt. of Police, CBI, New Delhi vide letter dated 20.01.2014, has filed a charge sheet under relevant Sections of IPC after due investigation against the Appellant. Furthermore, the Court had taken cognizance of the offence on 16.08.2012. W.r.t revocation of suspension of the Appellant, the CBI vide its letter dated 24.02.2015 informed the Respondent Public Authority that the Appellant was placed under deemed suspension suo moto by the Department and that the said matter of revocation of suspension should be left to the competent Authority of the Public Authority in accordance with CVC guidelines. Accordingly, his suspension was revoked on 10.03.2015 on the recommendation of the Suspension Review Committee. Therefore, as recommended by the Investigating Agency and DG Vig., New Delhi, a charge sheet was issued to the Appellant on 13.08.2013 for major penalty under CCS (CCA) Act, 1956 and in view of non-receipt of any reply to the Memorandum, an inquiry officer was appointed on 05.12.2013 to enquire in the said matter thus, clarifying that the present matter was under process, it was stated that the Departmental and CBI Inquiry had not attained its finality.
Hearing both the parties and on perusal of records, the Commission referred to the decision of CIC in F.No.CIC/AT/A/2006/00039 dated 01.06.2006 wherein it was held as under:
“8. In examining this case, the critical point is whether the plea of continuing investigation taken by the appellate authority and the CPIO is a valid plea, which would have the support of the exemption under Section 8(1) (h) of the RTI Act. It is to be considered whether an investigation can be said to be over just because the officer entrusted with such investigation has completed his task and submitted the report to the competent authority. This will also mean that an investigation and a decision in that investigation are two separate stages and cannot be said to constitute a continuum.
9. While in criminal law, an investigation can be said to be completed with the filing of the charge sheet in an appropriate court by an investigating agency, in cases of vigilance related enquiries, misconduct and disciplinary matters, the investigation can be said to be over only when the competent authority makes a determination about the culpability or otherwise of the person or persons investigated against. In that sense, the word investigation 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; of the Act should be construed rather broadly and should include all enquiries, verification of records, assessments and so on which may be ordered in specific cases. In all such matters, the enquiry or the investigation should be taken as completed only after the competent authority makes a primafacie determination about presence or absence of guilt on receipt of the investigation/enquiry report, from the investigation/enquiry officer.
10. There is another aspect to this matter. If for the sake of argument, it is agreed that the report of investigation in any matter can be disclosed immediately after the officer investigating the cases concludes his investigation and prepares the report which, let us assume, impeaches the conduct of a given officer. In case the competent disciplinary authority agrees with the findings of the investigating officer, disclosure of the report even before a final decision by the competent authority, would be inconsequential. There shall be problem, however, if the disciplinary/appointing authority chooses to disagree with the findings of the investigating officer. Early disclosure of the investigation report in such a case, besides being against the norms of equity, would have caused irretrievable injury to the officer/person’s (who would have been the subject of investigation) standing and reputation. His demoralisation would be thorough.
11. In exempting from disclosure matters pertaining to an on-going investigation (Section 8 (1) (h) ), the RTI Act besides other reasons, also caters to the possible impact of the disclosure of such information on the public servants’ morale and their self-esteem. There are, thus, weighty reasons for such a provision in the exemption clauses of the RTI Act.
12. We are keenly aware that one of the purposes of the enactment of the RTI Act is to combat corruption by improving transparency in administration. This objective should be achieved without impairing the interest of the honest employee. Premature disclosure of investigation related information has the potentiality to tar the employee’s reputation, permanently, which cannot be undone even by his eventual exoneration. The balance of advantage thus, lies in exempting investigations/enquiries in vigilance, misconduct or disciplinary cases, etc. from disclosure requirements under the Act, till a decision in a given case is reached by the competent authority. This also conforms to the letter and the spirit of Section 8 (1) (h) of the RTI Act.
13. There is one other factor that also needs some reflection. Disclosure of an investigation/enquiry report (as demanded in this case by the appellant) even before its acceptance/rejection by a given competent authority will expose that authority to competing pressures which may hamper cool reflection on the report and compromise objectivity of decision-making.”
Furthermore, the Commission in the decision of K.S. Prasad vs SEBI CIC/AT/A/2007/007/00234 had held as under:
“…as soon as an investigation or an enquiry by a subordinate Enquiry Officer in Civil and Administrative matters comes to an end and, the investigation report is submitted to a higher authority, it cannot be said to be the end of investigation. ... which can be truly said to be concluded only with the decision by the competent authority.”
In this context a reference can be made to the decision of the bench of the Commission in Shri Arun Kumar Agrawal v. SEBI CIC/SM/A/2012/000196 dated 28.11.2014 wherein it was held as under:
“15. In the present case, final orders are yet to be passed by the competent authority under the SEBI Act. Therefore, the process of investigation against the RIL is still pending before SEBI and it cannot be said the same has reached its conclusion. Hence, the requested information falls under exemption under section 8(1) (h) of the Act.
16. The Commission recognizes the perspective brought out on public interest in the course of the hearing. The appellant had underlined emphatically the dimensions of public interest overriding the protected interest, i.e. the protection given to the ‘fiduciary’ elements. However, the other side argued that the appellant is overstating the public interest without taking into account that the investigation is still going on. We have, therefore, to await the completion of this investigation. It will not be wise for the Commission to speculate as to what conclusions the SEBI will draw.”
However, it is appalling to note that the FAA had not acted in accordance with the provisions of the RTI Act, 2005 by deciding the First Appeal beyond the prescribed time period and therefore is advised to be alert and cautious in the implementation of the RTI Act, 2005 with due diligence and care. Moreover, the Superintendent (RTI) present at the hearing feigned ignorance about the provisions of the RTI Act, 2005. He continued to cite excuse that he had been recently posted in the present position which had no relevance to the knowledge of the RTI Act, 2005, per say.
DECISION
Considering the facts of the case and the submissions made by both the parties, the Commission noted that the Respondent was able to substantiate their stand for non-disclosure of information by claiming 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; of the RTI Act, 2005. No further intervention is warranted in the matter.
The Commission however, instructs the Respondent to convene periodic conferences/ seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
The Appeal stands disposed accordingly.
(Bimal Julka)
Information Commissioner
Citation: Mr. Amit Kumar Srivastava v. Customs, Central Excise & Service Tax in Appeal No.:-CIC/DOREV/A/2017/186035-BJ, Date of Decision: 15.01.2018