CIC: when a Government officer performing official functions makes notes on a file about the performance or conduct of another officer, such notings cannot be said to be given to the government pursuant to a fiduciary relationship with the government

Information sought:

File No. CIC/BS/A/2013/001467

The appellant has sought the following information:-

i. Attested copy of the prescribed procedure for conducting “re-examination” of any PVI report.

ii. Procedure that has been followed in “re-examination” of the PVI report 2005 by the team of Sh. D S Gosain, AD and Sh. A K Srivastava, AD.

iii. Attested copy of the provisions of the relevant rules/Manual that allow “reexamination” of a PVI report by the officers of equal rank.

iv. Para wise list of the documents/record that has been referred to and/or considered by Sh D S Gosain, AD and Sh. A K Srivastava, AD. During the course of “reexamination”.

v. Attested copy of the correspondence made by Sh D S Gosain, AD and SH. A K Srivastava, AD with Regional Office, Faridabad in connection with and/or for the purpose of the “re-examination” of the PVI report.

vi. Attested copy of the duly approved tour programme of Sh. D S Gosain, AD and Sh A K Srivastava, AD for visiting Regional Office, Faridabad in connection with and for the purpose of “re-examination” of the PVI report.

vii. Attested copy of the versions of the then ADs, who originally conducted the PVI 2005, obtained by Deputy Director, Vigilance (NZ) on the discrepancies, if any at all, observed during the “re-examination” of the PVI.

viii. Attested copy of the versions of the then Ads, who originally conducted the PVI 2005, obtained by Sh. D S Gosain, AD and Sh. A K Srivastava, AD during the reexamination of the PVI on the discrepancies, if any at all, observed by them.

ix. Attested copy of the noting side of the relevant file on which the “re-examination” report submitted by Sh. D S Gosain, AD and Sh. A K Srivastava, AD, has been put up/processed/examined for taking decision in the matter.

x. Attested copy of the PVIs of the Regional Office, Faridabad, Haryana conducted by ZDV (NZ) after 2005.

xi. Attested copy of the Office UO Note NO: Vig (NZ)/PVI/FBD/2005/220 dated 06/06/2005 issued to Director, Vigilance Headquarters.

xii. Attested copy of the noting side of the relevant file on which letter no. Vig.Misc(3) Haryana/05/3013 dated 23/08/2005 was put up/processed and examined for necessary action ZDV(NZ).

File No. CIC/BS/A/2013/001468

The appellant has sought the following information:-

 i. Attested copy of the consolidated report, as referred to above, submitted by the ZVD.

ii. Attested copy of the letter, as referred to above, vide which RPFC I has been advised to take corrective action.

iii. Attested copy of the noting side of the relevant file on the basis of which letter to RPFC I, as referred to above under item no. ii has been issued.

iv. Designation of the officers who prepared the consolidated report, as referred to above.

v. Whether the report in question, is simply a consolidation of earlier multiple individual reports or a report prepared on re-examination of the observations as made in the earlier multiple individual reports?

vi. If the report has been prepared on re-examination of the observation as made in the earlier multiple individual reports, provide para wise list of the documents/record that has been referred to and/or considered by the officers during the course of reexamination.

vii. Attested copy of the duly approved tour programme of the officers for visiting Regional Office, Faridabad in connection with and for the purpose of re-examination of the PVI report.

viii. If the report has been prepared on re-examination of the observations as made in the earlier PVI report by the officers of AD (Vig) rank, provide attested copy of the provisions of the relevant rules/Manual that followed in allowing re-examination of a PVI report by the officers of equal rank.

ix. Attested copy of the versions of the then Ads, who originally conducted the PVI 2005, obtained by the officers during the re-examination of the PVI on the discrepancies, if any, observed by them.

x. Attested copy of the noting side of the relevant file on which the consolidated report, so received from ZVD, has been put up/processed/examined for taking decision in the matter.

xi. Attested copy of the Office UO Note No : Vig(NZ)/PVI/FBD/2005/220 dated 06/06/2005 received from ZDV(NZ).

xii. Attested copy of the noting side of the relevant file on the basis of which letter no. Vig. Misc (3) Haryana/05/3013 dated 23/08/2005 was issued to ZDV (NZ).

xiii. Attested copy of the reports submitted to CVC in the matter of LBR 042 & 046.

Grounds for the Second Appeal: The CPIO has not provided the desired information.

Relevant Facts emerging during Hearing: The following were present

Appellant: Mr. S. A. A. Abbasi

Respondent: Mr. Gautam CPIO

The appellant stated that the subject matter of both his appeals is the same and hence, may be disposed of by a common order. The appellant stated that preventive vigilance inspection of the Faridabad regional office was conducted by a team of vigilance officers in the year 2005. As no action was taken on the report till 2011 an application under RTI Act was filed by him in 2011 to know the action taken on the report. On receiving the RTI application the vigilance wing started to dilute the recommendations of the vigilance officers contained in their report with the malafide intention to protect a particular officer from imminent disciplinary action for major penalty. To achieve the objective the report was re-examined by two vigilance officers junior to the officers who originally conducted the inspection and submitted their report without referring to any additional information or obtaining any version from the officers who originally conducted the inspection and submitted their report. In the instant applications the notings side of the file (i) on which the re-examination report was processed and examined at HQ, (ii) on which the letter to RPFC-I Faridabad was issued (iii) on which the consolidated report so received from the ZVD had been processed and examined at HQ and (iv) attested copy of the report submitted to the CVC in the matter of LBR 042 & 046, were sought.

The appellant further stated that all the above mentioned information have been denied by the CPIO by citing the decision of the Hon’ble CIC in case No. CIC/AT/A/2009/000200 claiming exemption under 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; & (g). As the ratio of the case quoted above does not apply to this case and this has been deliberately misconstrued and misplaced by the CPIO to protect the particular officer from imminent disciplinary action by refusing to disclose the information under the garb of the provisions of 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; & (g). The case quoted by CPIO relates to the information sought by an accused person in respect of ongoing disciplinary action against him and therefore any adverse comment or report against the accused officer has been seen as ground for threat to the safety of the persons examining his matter whereas in the instant case the appellant has acted as a whistle blower to remind the vigilance wing to perform their functions in a diligent manner to contain the corruption in the functioning of the organization and goading the vigilance with to act on the report submitted by the vigilance officer after their preventive vigilance inspection 2005.

The CPIO in her order has failed to give the reasons as to how the provisions of 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; &(g) apply to this case and what was the basis of her apprehension for threat to the officers of the vigilance wing from the appellant side. The Hon’ble High Court of Delhi in the matter of UOI vs. R S Khan decided on 07/10/2010 held that there must be some basis to invoke the provision it cannot be a mere apprehension. This observation has been made in respect of the provisions of section 8(1) (e) & (g). The High Court has also upheld the decision of CIC that the Government officer performing official functions and making notes on a file about the performance or conduct of another officer, such notings cannot be said to be given to the government pursuant to a fiduciary relationship with the government within the meaning 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 RTI Act. It is further stated that the personal hearing expressly sought from the FAA has been denied in the both the matters. To a query the appellant stated that none of the file notings sought by him contains any information related to a third party and the matter relates only to the system weaknesses as highlighted in the preventive inspection report. He gave copies of the reports on which the file notings have been sought for examination by the respondent. The respondent after examination of the reports stated that there is no problem as far as the report under item (ii), however, as regards (i), (iii) & (iv) he stated that will check up the records and provide the file notings after redacting any reference(s) to third party(s).

Decision Notice:

 As agreed by the CPIO the information as above should be supplied to the appellant, however, he is free to redact any references to third party(s) and also the date(s) of noting, name(s) and designation(s) of the person(s) recording the notings and/or any other indication in the notings which may reveal or tend to reveal identity of author of the noting. The information may be supplied within 15 days from the date of receipt of this order. The appeal is disposed of accordingly.

BASANT SETH

Information Commissioner

Citation: Mr. S. A. A. Abbasi v. EPFO Vigilance Headquarter in File No. CIC/BS/A/2013/001467+001468/5673