The PIO was unable to explain as to how the provision of these documents would impede the process of disciplinary proceedings - CIC concluded that the PIO has deliberately denied information to the appellant - Penalty of Rs 25,000/- imposed on PIO, AIIMS

Show Cause Hearing u/s 20 (1) of the RTI Act

The Commission vide order dated 24.04.2015, had issued a show cause notice to Shri K.P. Singh, AO/CPIO, AIIMS as to why penalty should not be imposed on him u/s 20 RTI Act, 2005 for deliberately denying information to the appellant on whimsical ground. Shri K.P. Singh, AO/CPIO is present before the Commission. The respondent submitted that information sought by the appellant was exempted 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; 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 gave reference to Commission’s orders :-

in case no. CIC/SS/A/2011/000940 in which the Commission decided that “since the file notings requested by the appellant deal with investigation/vigilance matter against the appellant against whom disciplinary proceedings are underway, the Commission does not find any reason to disagree with the reply of the respondent which is upheld”,

In case of Shivdayal Bisandare Vs. Western Coalfields Limited (RTIR IV held 2012 80 CIC) the Commission held that “the information as sought for by the appellant pertaining to ongoing inquiry, is exempted from disclosure under the provision 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; 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.”

In case no. CIC/AT/A/2010/000969-SS, the Commission held that “logically, no investigation could be said to be completed unless it has reached a point where the final decision on the basis of that investigation is taken.”

In case no. CIC/WB/A/2010/000768 and 946 – SM, the Commission held that “when the disciplinary proceedings are still pending, we do not consider it necessary to disclose those items of information, largely in the nature of correspondence between the CVC and the CBEC and related file noting, needless to say after the proceedings are over, the information seeker is entitled to get the copies of the desired records.”

He further stated that the appellant was granted full opportunity to present his case before the Inquiring Authority as per CCS (CCA) Rules 1965 and the disciplinary inquiry was held before the Inquiring Authority and after due inquiry, the Inquiring Authority submitted the inquiry report and copy thereof was provided to the appellant and he made his representation under the provisions of CCS (CCA) Rules. He further stated that necessary documents along with Memorandum of Article of Charges was provided to the appellant. The appellant submitted that preliminary inquiry report and other documents relied upon for the chargesheet have not been provided to him. On a query by the Commission to the respondent as to what documents have been provided to the appellant with the charge-sheet, he stated that he is not aware of the matter as to what documents were supplied to the appellant by the Inquiring Officer but if the Commission desires, he will check as to what documents have been provided to the appellant by the Inquiry Officer.

The Commission notes with concern that initially PIO out rightly denied information to the appellant on the ground of confidentiality and no attempt was made by him to furnish point wise response to the appellant. Now, first time in the Show Cause Hearing, he came with a new fact that the information was exempted 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; 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 and cited various decisions of the Commission in this regard. This issue has already dealt by the Commission in case no. CIC/SS/A/2013/0001038-YA, which reads as under:-

“As regards issue No (ii), the question before the commission is whether disclosure of information sought would impede the process of investigation or apprehension or prosecution of offenders. It would be expedient to extract clause (h) of section 8 (1) which reads as follows:-: “8. Exemption from disclosure of information- (1) notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- … (h) Information which would impede the process of investigation or apprehension or prosecution of offenders;”

From a plain reading of the above provision, it follows that Section 8(1) (h) of the RTI Act exempts disclosure of information which would impede the process of investigation or apprehension or prosecution of offenders. Merely because the process of investigation or apprehension or prosecution of offenders is continuing, the bar stipulated under Section 8(1) (h) of the RTI Act is not attracted; it must be clearly established by the PIO that disclosure of the information would impede the process of investigation or apprehension or prosecution of offenders. In this regard, it would be relevant to note that Ravindra Bhat, J. of the High Court of Delhi in Bhagat Singh v. Chief Information Commissioner and Ors. (WP(C) No. 3114/2007) stated that: “13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1) (h) and other such provisions would become the haven for dodging demands for information.”

The division bench of Delhi High court presided by Hon’ble the Chief Justice of Delhi High Court in case of Director of Income Tax (Investigation) and Ors. Vs. Bhagat Singh and Anr (LPA 1377/2007) also observed that:- “8.... Under Section 8(1) (h) information can be withheld if it would impede investigation, apprehension or prosecution of offenders. It is for the appellant to show how and why investigation will be impeded by disclosing information to the appellant. General statements are not enough. Apprehension should be based on some ground or reason....”

In Sudhiranjan Senapati Vs. Union of India and Ors. (WP (C) 7048/2011), Justice Rajiv Shakdher of Delhi High Court had observed that: -

“13. Therefore in my view, in such like cases when, the State takes a stand the information can not be disclosed; while dilating on its stand in that behalf, the State would necessarily have to, deal with the aspect as to how the information sought, is of such a nature, that it could impede prosecution. Much would thus depend, on the nature of information sought, in respect of which, a clear stand needs to be taken by the State, while declining the information...”

It is clear from the decisions of the Hon’ble Delhi High Court as stated above, the PIO, who is denying information under Section 8(1) (h) of the RTI Act, must show satisfactory reasons as to why disclosure of such information would impede the process of investigation or apprehension or prosecution of offenders. These reasons must be relevant and the opinion of the PIO that by disclosing the information, prosecution of offenders shall be impeded should be reasonable. The opinion of the PIO must be based on some material and cannot be a mere apprehension not supported by any evidence. General statements are not enough. Apprehension should be based on some ground or reason.

The stand taken by CPIO for declining the information in present case is that if names of the officer involved in processing the matter are disclosed at this stage, they may be subject to pressure and harassment and may be prevented from expressing their view frankly and impartially in an objective manner. The stand of the PIO as stated above is neither in consonance with the rulings of the High Court nor in agreement with the provision of section 8 (1) (h) of the Act.

Moreover, a careful reading of the section reveals that the word used in section 8(1) (h) is “would” which implies that there should be definite material information in the hands of the CPIO to delineate that disclosure of the information will impede the process of investigation. Mere apprehension is not enough. If the intent of the legislature was to deny information on the basis of apprehension it would have used the word “could”. In the present case since the express intention of the Legislature is clear from the very preamble of the Act, it is not permissible to speculate whether the word “would” includes “could”. Moreover, while it is the duty of the Commission to harmonise the various provisions of the Act as enacted by the legislature but it certainly is not the duty of the Commission to stretch the words used by the legislature to fill in gaps or omissions in the provisions of the Act. Denial of a citizen’s fundamental right must be justified and the mere act of continuing an investigation cannot be used to deny citizens’ rights.”

In view of the above, exemption now claimed by the PIO 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; 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; in denying information which was without any satisfactory reasons as to why disclosure of such information would impede the process of investigation or apprehension or prosecution of offenders, is not maintainable. Moreover, PIO stated that most of the information sought by the appellant was provided by the Inquiring Authority but he is not aware as to exactly what documents were provided. The Commission is also not able to understand as to how the information which was already with the appellant becomes confidential in nature when the same was sought through RTI application. The manner in which the PIO has dealt with the RTI application shows his malafide intent in supplying information to the appellant.

The appellant sought documents through the RTI Act on 27.02.2014 to prove his innocence in the inquiry proceedings initiated against him. The CPIO denied all the documents sought stating that the information is confidential. No relevant Section of the RTI Act was invoked. The first appeal was not heard by the First Appellate Authority which forced the appellant to file second appeal before the Commission. During the first hearing, the CPIO in response to query whether the preliminary inquiry report has been provided to the appellant or not, stated that he was unaware as to which documents were provided or not. Later he averts that the information was confidential. The Commission had directed the CPIO to furnish a point-wise response and provide information on the basis of available records to the appellant within 15 days of receipt of this order under intimation to the Commission. No reply was sent to the appellant defying Commission’s order. Non-compliance of Commission’s order is being taken up separately.

In the instant case, the CPIO filed a written submission, the substance of which has been mentioned above in this order and during his show-cause hearing reiterated his plea of invoking 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; 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 was, however, unable to explain as to how the provision of these documents would impede the process of disciplinary proceedings. The Commission, therefore, comes to the conclusion that the CPIO has deliberately denied information to the appellant. During the hearing he has changed his pleas twice which clearly reveals that the intent behind the denial of information was well studied and deliberate. In view of the above, the Commission is restrained to impose a penalty of Rs 25000/- (rupees Twenty Five Thousand only) u/s 20(1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees: Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be. on Shri K.P. Singh, AO (Legal Cell)/CPIO, AIIMS for deliberately denying information to the appellant.

This amount will be deducted from the salary of Shri K.P. Singh, AO (Legal Cell)/CPIO, AIIMS, in five equal instalments @ Rs. 5000/- per month starting from August 2015. The total amount of Rs. 25000/- will be remitted by December 2015. The First Appellate Authority/Chief Administrative Officer, AIIMS is directed to recover the amount of Rs. 25000/- from the salary of Shri K.P. Singh, AO (Legal Cell)/CPIO, AIIMS and remit the same through a Demand Draft or a Banker’s Cheque in favour of Pay & Accounts Officer, CAT, payable at New Delhi and send the same to Shri Shanti Priye Beck, Joint Secretary (Admn.), Central Information Commission, Room No. 302, 2nd Floor, August Kranti Bhawan, New Delhi – 110066.

(Yashovardhan Azad)

Information Commissioner

Citation: Shri Raju Singh v. AIIMS in F.No. CIC/YA/A/2014/001034