Copies of file notings regarding the final disposal of a Court of Inquiry were denied u/s 8(1)(e) - CIC called for the file notings - certain paragraphs in the notings impinge on the conduct and character of a particular lady - rest to be disclosed
31 Aug, 2013Copies of file notings regarding issue of show cause notice and the final disposal of a Court of Inquiry were denied u/s 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; - disciplinary proceedings are already over against the appellant - CIC called for the file notings and the opinion of the JAG Branch - certain paragraphs in the notings impinge on the conduct and character of a particular lady - disclosure of the names and designations of the officers who made notings in the files as it may adversely affect the espirit de corps of the officer cadre - rest to be disclosed
FACTS
This matter was initially heard on 11.7.13. The proceedings of the day are extracted below:
This matter is heard through video conferencing today dated 11.7.13 at 11.30 hrs. The Appellant is present at NIC Studio, Pune. The Army is represented by Col. A.K.Tiwari, CPIO; Col. Jatinder Singh and Col. Ajay Kumar.
2. The appellant submits that pursuant to a Court of Inquiry held against him, a show cause notice was issued to him. He had given his explanation to the show cause notice whereafter the competent authority had imposed penalty on him. In this context, vide RTI application dated 2.6.12, he had sought copies of file notings concerning the issue of show cause notice and the final disposal of the matter. The PIO vide letter dated 27.6.12 had informed the appellant that requested information could not be disclosed u/s 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; of the RTI Act. On appeal, the AA, in order dated 31.12.12, had upheld the decision of the CPIO.
3. The present appeal is directed against the above orders.
4. I have heard the parties. I have also perused the material on record. The Respondent Army officers submit that file notings in question cannot be supplied to the appellant in view of the provisions of section 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; of the RTI Act. I will like to peruse the records. Hence, the CPIO is directed to produce the file notings as also the opinion of the JAG Branch in this matter before me on 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. .7.13 at 14.30 hrs. 2. The matter was subsequently heard on 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. .7.13. Appellant present. The Southern Command is represented by Col. A.K.Tiwari (CPIO) and Col. Jatinder Singh. Col. Tiwari produces the relevant records which are perused. The parties are also heard and they are directed to file their written representations. 3. The parties are further heard on video conferencing on 25.7.13. 4. The written representations have since been received which are taken on record. In his written representation, the appellant had argued that the file notings are indispensable part of decision making process and are liable to be disclosed.
He has relied on the following decisions of the Commission to canvass his case:
“a) Shri Sandeep Bansal vs Army Headquarters, Min of Def on 10 Nov 2008 Appeal No.CIC/WB/A/2007/00972SM
b) Mr.S.Sabharwal vs Min of Def on 9 June, 2011; File No.CIC/LS/A/2011/001163 (author – IC Mr M.l.Sharma)
c) Col V.K.Shad Vs Indian Army in File No.CIC/LS/A/2011/000617 and connected orders by the Hon’ble CIC.”
5. He has also canvassed that severability clause u/s 10(1) Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information. Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information. is not applicable in the present case as the information requested for by him falls in public domain. The appellant has also contended that full and complete disclosure would be in the larger public interest.
6. On the other hand, Col. A.K.Tiwari has strongly protested against disclosure of requested information. Para 2 of his representation is extracted below: “In addition to our submission dated 02 March 2013 forwarded vide this office letter No.24010006/Nargolkar/02/RTI dt 02 Mar 2013, we would like to submit the following arguments in support of our contention for non supply of Noting Sheets requested by the Appellant:
(a) As claimed earlier, the noting sheets have been initiated in a fiduciary relationship thereby the officers reposing trust in their superior officer. The Noting Sheets which also include views/expressions/assessment of the officers in discharge of their official duties should not be revealed to the Appellant as the Appellant has threatened to exploit the contents of the Noting Sheets/views expressed by officers by filing criminal cases against them. Hence, the interest of these officers who initiated Noting Sheets should also be protected under section 8(1)(g) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; of the RTI Act as it may endanger their life and physical safety and security. More the reasons, all those officers have retired from service, they should not be made to fend for themselves and harassed in connection with a duty performed by them in their official capacity.
(b) It may also be duly considered that the Noting Sheets asked by the Appellant pertains to issuance of Show Cause Notice and award of Censure. The directions on the Court of Inquiry which is the basis for issuance of Show Cause Notice, as well as censure Order have already been quashed by Hon’ble Delhi High Court, Delhi vide its order dated 09 July 2012 in WP(C) No.13360/2009 and 13367/2009. The Appellant has already got relief and favourable order from Hon’ble Delhi High Court and hence these Noting Sheets also can be treated to have lost relevance and hence should not be supplied to the Appellant as he has already got justice. In the present circumstances his aim to get these Noting Sheets is only to harass those retired officers who initiated Noting Sheets. If Noting Sheets are supplied, it will be a gross injustice to them.
(c) It is also submitted that the basis of Show cause Notice and censure Order was the evidence contained in the Court of Inquiry proceedings and not the Noting Sheets. Court of Inquiry has also been quashed by the Hon’ble High Court of Delhi. Hence the sole aim and motive of the Appellant is one and only the one that is to act in vengeance against these officers who initiated the Noting Sheets. As stated above, justice should not be delivered at the cost of injustice to others.
(d) It is therefore, kindly submitted that the Appellant has time and again threatened to file criminal cases against officers who have expressed their views in official discharge of their duties. They had no personal vengeance whatsoever against Colonel A.D. Nargolkar (Retd.). Those officers have now retired from service and should not be left to fend for themselves for an act done by them in discharge of the official duty. This may also affect the moral of others and deter the officers from expressing their independent views. In case the Hon’ble CIC feels that the Noting Sheets (Note 10 to 26) pertaining to issuance of Show Cause Notice and award of Censure to the Appellant should be given to him, then it may kindly be ensured that as discussed with Hon’ble CIC during the hearing on 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. Jul 2013 and 25 Jul 2013. Para 2, 3, 4 of Note 10 (the First Note pertaining to processing of Show Cause Notice on file), Para 3 of Note 11 and Para 2 and 3 of Note 12 be severed and the names of officers who made these comments on the Noting Sheets should be obliterated.”
7. It is pertinent to mention that in the RTI application under reference, the appellant has sought copies of file notings concerning the issue of show cause notice to him and final disposal thereof. It is important to mention that disciplinary proceedings are already over against the appellant and nothing is pending. It has been the considered view of this Commission in a catena of decisions that after the conclusion of the disciplinary proceedings, the entire material on record is disclosable to the affected person subject to the prohibitory clauses of Sec.8(1). In the matter in hand, CPIO has, however, invoked clause (e) of Sec. 8(1) in denying the file notings to the appellant.
8. Clause (e) reads as follows: “information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;”
9. The question is whether the file notings are barred from disclosure under clause (e).
10. In Col. V.K.Shad Vs. Indian Army (F.No.CIC/LS/A/2011/000617), the Commission had answered the question in the negative. Para 07 of the decision is extracted below:
“7. It is incontrovertible that no proceedings are pending against the appellant at present. Hence, the matter is not covered 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; of the RTI Act. It would also not be correct to say that the officers made notings in the files in fiduciary capacity. The notings were made in ordinary course and constitute official records of the units/formations concerned. In this view of the matter, the file notings are disclosable to the appellant. Even so, in view of the special attributes of the Armed Forces and their Command structure, it would not be expedient to disclose the identity and designations of the officers who made notings in the files as it may adversely affect the espirit de corps of the officer cadre. Considering the totality of the circumstances, I hereby order that the entire information requested for by the appellant, as extracted above, may be supplied to him subject to the proviso that the names and designations of the officers who made notings in the files would be obliterated in terms of section 10(1) Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information. Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information. of the RTI Act.”
11. This matter was agitated in the Delhi High Court in WP(C) 449/2012 and CM 1059/2012 (UOI Vs. Col. V.K.Shad) wherein the High Court recorded the following findings:
“20.2 The above would show that there are two kinds of relationships. One, where a fiducial relationship exists, which is applicable to legal relationships between parties, such as guardian and ward, administrator and heirs, executors and beneficiaries of a testamentary succession; while the other springs from a confidential relationship which is pivoted on confidence. In other words, confidence is reposed and exercised. Thus, the term fiduciary applies, it appears, to a person who enjoys peculiar confidence qua other persons. The relationship mandates fair dealing and good faith, not necessarily borne out of a legal obligation. It also permeates to transactions, which are informal in nature. [See words and phrases Permanent Edn. (Vol. 16A, p. 41) and para 38.3 of the CBSE vs Aditya Bandopadhyay]. As indicated above, the Supreme Court in the very same judgment in paragraph 39 has summed up as to what the term fiduciary would mean. 20.3 In the instant case, what is sought to be argued in sum and substance is that it is a fiducial relation of the latter kind, where the persons generating the note or opinion expects the fiduciary, i.e., the institution, which is the Army, to hold their trust and confidence and not disclose the information to the respondents herein, i.e., Messers V.K. Shad and Ors. If this argument were to be accepted, then the persons, who generate the notes in the file or the opinions, would have to be, in one sense, the beneficiaries of the said information. In an institutional set up, it can hardly be argued that notes on file qua a personnel or an employee of an institution, such as the Army, whether visavis his performance or his conduct, in any manner, can benefit the person, who generates the note or renders an opinion. As a matter of fact, the person who generates the note or renders an opinion is presumed to be a person who is objective and not conflicted by virtue of his interest in the matter, on which, he is called upon to deliberate. If that position holds, then it can neither be argued nor can it be conceived that notes on file or opinions rendered in an institutional setup by one officer qua the working or conduct of another officer brings forth a fiduciary relationship. It is also not a relationship of the kind where both parties required the other to act in a fiduciary capacity by treating the other as a beneficiary. The examples of such situations are found say in a partnership firm where, each partner acts in fiduciary capacity qua the other partner(s). 20.4 If at all, a fiduciary relationship springs up in such like situation, it would be when a third party seeks information qua the performance or conduct of an employee. The institution, in such a case, which holds the information, would then have to determine as to whether such information ought to be revealed keeping in mind the competing public interest. If public interest so demands, information, even in such a situation, would have to be disclosed, though after taking into account the rights of the individual concerned to whom the information pertains. A denial of access to such information to the information seekers, i.e., the respondents herein, (Messers V.K. Shad & Co.) especially in the circumstances that the said information is used admittedly in coming to the conclusion that the delinquent officers were guilty, and in determining the punishment to be accorded to them, would involve a serious breach of principles of natural justice, as non-communication would entail civil consequences and would render such a decision vulnerable to challenge under Article 14 of the Constitution of India provided information is sought and was not given.”
12. In view of the above discussion, I am of the opinion, that clause (e) of Sec 8(1) is not attracted in the present case.
13. As noted above, Col. Tiwari produced the relevant records before me on 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. .7.13. On a careful perusal thereof, I find that there are certain paragraphs in the notings impinge on the conduct and character of a particular lady. In my opinion, it would not be wise to disclose these paras. Hence, in the facts and circumstances of the case, I hereby order that copy of the file notings may be supplied to the appellant, free of cost, after obliterating the following paras: i) Paras 2, 3 and 4 of Note 10; & ii) Paras 2 and 3 of Note 12.
14. Further, in the peculiar facts and circumstances of the case, in my opinion, it would not be expedient to disclose the names and designations of the officers who made notings in the files as it may adversely affect the espirit de corps of the officer cadre. Hence, the CPIO will have the liberty to obliterate the names and designations of such officers. The matter is decided accordingly.
15. This order may be complied with in four weeks. Order reserved & pronounced on 6th August, 2013
(M.L.Sharma)
Information Commissioner
Citation: A.D.Nargolkar v. HQ, Southern Command in File No.CIC/LS/A/2013/000924