Copy of the receipt given to the department of C. Excise from whose possession his case file was taken, the file duly authenticated by the agency who took its possession, the action taken on the said file. etc was sought - CIC: No intervention is required
O R D E R
The Appellant vide his RTI application sought information on 04 points regarding the copy of the receipt/seizure memo or any other document given to the department of Central Excise from whose possession his case file was taken, the file duly authenticated by the agency who took possession of the said File of M/s HCCLP given to the department, the action /steps taken on the said file and also to provide inspection of the concerned files, etc.
The CPIO vide its letter dated 21.06.2016 denied disclosure of information u/s 8 of the RTI Act, 2005 stating that the investigation process in the instant matter was underway. Dissatisfied by the reply of the CPIO, the Appellant approached the FAA. The FAA vide its detailed order dated 25.08.2016 informed that the relevant matter of the Appeal was available with the Disciplinary Authority and therefore the same could be sought from it. An opportunity of personal hearing was also offered to the Appellant on 16.08.2016
Facts emerging during the hearing:
The following were present:
Appellant: Mr. G. Sree Harsha (Addl. Director General posted at Chennai) through VC;
Respondent: Mr. Vaidyanath Biswas, CPIO/AC through VC;
The Appellant reiterated the contents of his RTI application and stated that the information sought by him had not been provided despite repeated attempts. In its reply, the Respondent explained that in this matter, the whole process was under investigation which was still underway and that is why the exemption was claimed under Section 8 of the RTI Act, 2005. The FAA had examined the whole matter and that the concerned disciplinary authority informed the Respondent that a memorandum dated 27.07.2016 had been issued to the Appellant that contained the list of documents based on which the articles of charges were framed against the Appellant. The documents sought by him were with the investigating authorities and that the concerned files had still not been delivered to their department by the investigating agency.
The Appellant vide his written submission dated 11.01.2018 stated that he was facing an alleged charge as an accused before the Court of Law relating to an adjudication file of his department in which he was the adjudicating authority at the relevant point of time. Moreover, the said adjudication file was the only record based on which the prosecution proposed to prove the charge against him and therefore he was entitled for the certified copy of the file including the note sheet of that file wherein the draft adjudication order containing his hand written corrections and signatures were present which were vital documents that could reveal the truth in the fact finding process of the ongoing inquiry/trial to which he was lawfully entitled to prove his innocence. It was also informed that the office of the CPIO was the custodian of the said file till the time it was taken by the CBI on 15.05.2015. Moreover, it was argued that 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, 2005 was not applicable in the present matter since no satisfactory reason was provided by the CPIO while denying the information. Reliance was placed on the decision of the Commission in the matter of Dharambir Khattar v. CBI dated 21.06.2011. 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.”
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.”
Moreover, with regard to exemption claimed as CBI being an exempt organization under Section 24 r/w II schedule of the RTI Act, 2005, the Commission referred to the Hon’ble Madras High Court decision in W.P. No. 14788 of 2011 and M.P. No. 1 of 2011 S. Vijayalakshmi Vs Union of India, wherein it was held as under:
“21...it has been found that the functioning of CBI was being affected due to various difficulties due to exposure to queries under the RTI Act. It was stated that due to RTI queries being posed, the officers of CBI would be deterred from recording their views on the files fearlessly and independently. In view of the fact that CBI handles cases affecting national security, legal opinion was obtained on the issue of whether CBI was a security and intelligence organisation and could be included in the 2nd Schedule to the RTI Act. The legal opinin confirmed that in view of the nature and functions of the CBI, it could be included in the 2nd Schedule as a security and intelligence organisation. The matter was thereafter considered by the Committee of Secretaries which recommended for inclusion of CBI in the 2nd Schedule of the RTI Act. Thereafter a decision was taken by the competent authority and a notification was issued in exercise of powers under Section 24 of the RTI Act. Thus from the averments referred to above, the matter was considered at all levels before a decision was arrived at and after analysing the materials placed by the CBI, the Union Government held that CBI was a security and intelligence organisation.
35. Indisputably, CBI is dealing with so many cases of larger public interest and the disclosure of information shall have great impact not only within the country but abroad also, and it will jeopardise its works. Equally, the investigations done by CBI have a major impact on the political and economic life of the nation. There are sensitive cases being handled by the CBI which have direct nexus with the security of the nation. Once jurisdiction is conferred upon the CBI under Section - 3 of the Act by notification made by the Central Government, the power of investigation should be governed by the statutory provisions, and cannot be interfered with or stopped or curtailed by any executive instructions, and shall not be subjected to any executive control.
40. Ultimately the Hon'ble Division Bench after going through the reasons assigned by the State Government, seeking to justify their decision under Section 24(4), held that confidentiality and secrecy in certain cases are required to be maintained right from the initial stage upto filing of charge sheet on the one hand and upto issue of final orders in the case of disciplinary proceedings. In vigilance cases, giving information at the initial stage, investigation stage and even prosecution stage would lead to unnecessary embarrassment and would definitely hamper due process of investigation. Thus it was held that the State Government has given sufficient reasons as to why it was exercising power under Section 24(4) of the Act and this exercise of discretionary power is also protected under Article 19(2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order. of the Constitution as it is a reasonable restriction in the interest of public order. The findings rendered by the Hon'ble Division Bench would apply with full force to the case on hand also.”
In the matter of Esab India Limited v. Special Director of Enforcement, WP (C) No. 1138/2010 dated 08.03.2011, the Hon’ble High Court of Delhi while dealing with a petition challenging the validity of Section 24 read with Second Schedule to the RTI Act, 2005 had held as under:
“27. In the case at hand, as far as Section 24 is concerned, it is evincible that the said provision excludes the intelligence and security organizations specified in the Second Schedule. We have already reproduced the Second Schedule. The petitioner is concerned with the Directorate of Enforcement which comes at serial No. 5 in the Second Schedule. What has been denied in first part of Section 24 is the intelligence and security organizations. The first proviso adds a rider by stating that an information pertaining to allegations of corruption and human right violations shall not be excluded under the sub-section. Thus, it is understood that information relating to corruption and information pertaining to human rights are not protected. In our considered opinion, the restriction on security and intelligence aspect cannot be scuttled as the same has paramountancy as far as the sovereignty and economic order is concerned. Article 19(1)(2), which deals with reasonable restriction, mentions a reasonable restriction which pertains to security of the State, integrity of India and public order.
28. In our considered opinion, the restrictions imposed are absolutely reasonable and in the name of right to freedom of speech and expression and right to information, the same cannot be claimed as a matter of absolute right. Thus, the submissions advanced on this score are untenable and accordingly we repel the same.”
Furthermore, the Commission referred to the decision of the Hon’ble Supreme Court in the matter of Civil Appeal no. 6454 of 2011 Central Board of Secondary Education and Anr. Vs. Aditya Bandopadhyay and Ors. which held as under:
“35…... the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions…”
Similarly, the Hon’ble Delhi High Court in the case of The Registrar Supreme Court of India v. Commodore Lokesh K. Batra & Ors LPA 24/2015 & CM No. 965/2015 held as under:-
“15. On a combined reading of Section 4(1)(a) Every public authority shall maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated; and Section 2(i), it appears to us that the requirement is only to maintain the records in a manner which facilitates the right to information under the Act. As already noticed above, ‘right to information’ under Section 2(j) “right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to- (i) inspection of work, documents, records; (ii) taking notes, extracts or certified copies of documents or records; (iii) taking certified samples of material; (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device; means only the right to information which is held by any public authority. We do not find any other provision under the Act under which a direction can be issued to the public authority to collate the information in the manner in which is sought by the applicant”.
A reference was drawn to the Hon’ble Supreme Court observation in CBSE v. Aditya Bandopadhyay & Ors.(supra), wherein it has been held:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of Section 3 and the definitions of "information" and "right to information" under clauses (f) and (j) of Section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in Section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant........"
Considering the facts of the case and the submissions made by both the parties, it is evident that the CPIO/FAA had passed a detailed decision in the matter and that no further intervention of the Commission is required. The Appeal stands disposed accordingly.
Citation: Mr. G. Sree Harsha v. Central Excise & Service Tax in Appeal No.:-CIC/DOREV/A/2017/186012-BJ, Date of Decision: 15.01.2018