Is the Court of enquiry proceeding liable to be disclosed under RTI?
A Lt. General in the Indian Army was working as Director General, Supply and Transport, at the Army Headquarters before his retirement on 30.9.2006. He submitted that on the basis of certain anonymous complaints, a Court of Inquiry (CoI) was held in October, 2005, regarding alleged irregularities in the purchase of dal etc. from M/s Gujarat Grain Growers Federation Limited (GRAINFED). On the conclusion of CoI, the appellant was ordered to be attached to HQ 2 Corps on 18.7.2006. Against the order, he moved to the Delhi High Court which vide order dated 11.1.2007, held that the respondent Army authorities had not complied with the provisions of Rule 180 of the Army Rules, 1954, and, therefore, could not take any further proceedings against the appellant on the basis of Court of Inquiry held in furtherance to the order of the competent authority dated 26.9.2005. However, the Army Authorities were given the liberty to give notice to the appellant and continue with the proceedings under Army Rule 180, or alternatively, take recourse to the provisions of Rule 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. or exercise any other power available to them under the Act in so far as they did not rely on the proceedings of the aforesaid Court of Inquiry. Thereafter, the appellant was again attached to HQ 11 Corps in September, 2007 and after a series of proceedings, the High Court transferred the matter to the newly constituted Armed Forces Tribunal (AFT) in August, 2009. The AFT permitted the Army Authorities to assemble the Court of Inquiry and give an opportunity of hearing to the appellant under Rule 180 as per High Court order. The CoI proceedings were completed in November, 2009 and after the recording of Summary of Evidence, GCM proceedings were started again against him on 6.8.2010. These proceedings were concluded in February, 2011 which held him guilty for various acts of omission and commission and inflicted punishment of imprisonment of three years. Thereupon, he moved AFT, Chandigarh Bench, and was granted bail. The punishment inflicted on him was confirmed by the Chief of Army Staff in January, 2012, and thereafter promulgated by GOC 11 Corps.
He had filed RTI application dated 1.12.2010 seeking information regarding the aforesaid proceedings conducted against him at various levels during the period 2005 to 2010. Due to refusal of the PIO to disclose this information, the matter came up before the CIC. Vide order dated 30.8.2011, the CIC had held that the requested information could not be disclosed to him in view of the pendency of confirmation proceedings and that the matter fell in the mischief 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; of the RTI Act.
He informed that the enquiry has been completed and hence 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; is no longer applicable. He principally sought information related to:-
(A) Court of Inquiry - Opinion, findings and recommendations; · JAG opinion in COI;
· Notings made by the officers of the Western Command; · Opinion of GOC-in-C, Western Command; · Notings made in the Army Headquarters; & · Directions issued by Chief of Army Staff.
(B) Re-convening CoI - Opinion/findings/recommendations; · Opinion of JAG, Western Command; · Opinion of GOC-in-C, Western Command; · Notings of the Army Headquarters; & Directions issued by the Chief of Army Staff.
(C) Summary of Evidence - Opinion, findings and recommendations; · Opinion of JAG, Western Command; · Opinion of Corps Commander, 11 Corps; · Opinion of GOC-in-C, Western Command; · File notings made in Army Headquarters; & · Directions of the Chief of Army Staff.
(D) Appellant submitted that there were two proceedings of Summary of Evidence. He sought information as in (C) above in regard to both Summary of Evidence proceedings.
The respondents argued that:-
(i) Though COAS has confirmed the GCM proceedings against the appellant yet, the proceedings cannot be said to have attained finality as the AFT have given bail to the appellant.
(ii) The proceedings against two other officers are pending in the same matter and, therefore, disclosure of requested information would impede the pending proceedings.
(iii) The opinion rendered by the JAG Branch of the Army cannot be disclosed to the appellant in terms 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; of the RTI Act as JAG has rendered opinion in fiduciary capacity.
Counter-argument by the appellant
The appellant argued that he was DGST at the relevant time and his role, functions and responsibilities were totally different from that of the two Colonels against whom enquiry is pending. His Court of Inquiry, Summary of Evidence and GCM was independent of all others and there was no joint trial and his case has to be treated on ‘stand alone’ basis.
Cases relied upon
- Supreme Court in CBSE vs Aditya Bandopadhyay
- Delhi High Court in WP© 449/2012 and CM 1059/2012(UOI –Vs- Col. V.K. Shad);
- Delhi High Court WP(C) 1138/2012 and CM 2462/2012 (UOI –Vs- Col. P.P. Singh);
- Delhi High Court WP(C) 1144/2012 and CM 2486/2012 (UOI –Vs- Brig. S. Sabharwal);
- Supreme Court in Secretary General, Supreme Court of India –Vs- Subhash Chand Aggarwal
Observations of the CIC
The CIC observed that a denial of access to such information to the appellant especially in the circumstances that the said information is used admittedly in coming to the conclusion that the delinquent officer was guilty, and in determining the punishment to be accorded to them, would involve a serious breach of principles of natural justice. The CIC also observed that the person who generates the note on a file 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. It cannot be argued that notes on file or opinions rendered in an institutional setup by one officer on conduct of another officer bring 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.
View of the CIC
As the COAS has confirmed the vies of the GCM, the proceedings can be said to have attained finality. Grant of bail by AFT is a court process and stands on a different footing and cannot be construed as part of departmental proceedings. Disclosure of requested information will not cause any prejudice to the proceedings pending against the other two officers.
In view of the special attributes of the Armed Forces and their Command structure, it would not be expedient to disclose identity and designation of officers who made notings in the files as it may adversely affect spirit de corps of the officer cadre. Hence, the PIO will be at liberty to obliterate the names and designations of such officers 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. of the RTI Act.
Citation: Shri S. K. Sahni v. Indian Army in File No.CIC/LS/A/2012/002157,CIC/LS/A/2012/002158 & CIC/LS/A/2012/002159
RTI Citation : RTIFI/2013/CIC/1057
Click here to view original RTI order of Court / Information Commission