CIC/SB/A/2016/001227-BJ

CENTRAL INFORMATION COMMISSION 2nd Floor, August Kranti Bhawan, Bhikaji Cama Place New Delhi-110066, website:cic.gov.in

Appeal No.:-CIC/SB/A/2016/001227-BJ Appellant : Mr. R K Jain 1512-B, Bhishm Pitamah Marg Wazir Nagar, New Delhi-110003 Respondent : CPIO & Dy. Commissioner (Vig.) Dte. Gen. of Vigilance, Customs & Central Excise, 3rd Floor, Hotel Samrat, Kautilya Marg, Chanakyapuri, New Delhi-110021 Date of Hearing : 12.06.2017 Date of Decision : 12.06.2017 Date of filing of RTI applications 25.04.2016 CPIO’s response 26.05.2016 Date of filing the First appeal 03.06.2016 First Appellate Authority’s response 30.06.2016 Date of diarised receipt of second appeal by the Commission 27.07.2016 O R D E R FACTS: The Appellant vide his RTI application sought information on 09 points (A to I) regarding details of files held by CBEC in relation to Shri Anup Srivastava, IRS, Commissioner, file number in which the litigation in relation to Shri Anup Srivastava, IRS, Commissioner in the CAT, High Court and Supreme Court was dealt with, inspection of relevant files, current status of cases filed by or against Shri Anup Srivastava and issues related thereto. The CPIO and Dy. Commissioner (Vig.) vide its letter dated 26.05.2016, while relying on the decision of the Hon’ble Supreme Court of India in Girish Ramchandra Deshpande vs. Central Information Commission & Ors. SLP(C) No. 27734 of 2012 dated 03/10/2012 denied disclosure of information as per Section 8 (1) (j) of the RTI Act, 2005. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 30.06.2016, while concurring with the response of the CPIO relied on the decision of the Hon’ble Supreme Court of India in R.K. Jain v. Union of India Civil Appeal No. of 2013 arising out of SLP (C) 22609 of 2012 and High Court of Madhya Pradesh in Shrikant Pandya v. State of M.P. AIR 2011 MP 14 in support of its decision. HEARING: Facts emerging during the hearing: The following were present: Page 2 of 4 Appellant: Mr. R K Jain (M: 9810077977) Respondent: Mr. Atul Singh, Dy. Commissioner, O/o D.G. (Vig.) (M.9990058007) (Arrived Late); The Appellant re-iterated the contents of his RTI application and stated that exemption under Section 8 (1) (j) was incorrectly claimed by the Respondent. It was alleged that the Officer regarding whom information was sought by the Appellant was involved in corrupt malpractices and managed to get cases against him diluted on consideration other than legal. It was further stated that the Officer was raided by the CBI and remained arrested for considerable time and even the bail was initially denied. Such illegal activities of a public servant cannot be camouflaged under the garb of personal information and therefore should be disclosed in the larger public interest. The impugned order of the CPIO/ FAA was liable to be set aside. In its reply, the Respondent submitted that the information was denied from disclosure by the CPIO/ FAA being third party information and as per Section 8 (1) (j) of the RTI Act, 2005. The Appellant submitted that an inquiry was instituted by the Commission in a similar matter decided by it in CIC/SB/A/2016/000935-BJ dated 01.03.2017 wherein Chairman, CBEC had been directed to get a detailed inquiry conducted in the matter. The Appellant also argued that the Respondent could severe any personal information, if sought, in accordance with section 10 of the RTI Act, 2005. The Appellant submitted that he did not desire information pertaining to personal records of an officer as argued by the FAA but statistical/ official records available with the CBEC. It was also contended that seeking mere file number did not fall within the purview of personal information and that he was not desirous to seek any personal details regarding his ACR related records, etc. As regards reliance on the decision of the Hon’ble Supreme Court of India in Girish Ramachandra Deshpande, it was submitted that information may be disclosed if the matter involves larger public interest. Also in accordance with the proviso to Section 8 (1), information which could not be denied to the Parliament cannot be denied to the citizens also. Furthermore, a reference was also made to the overriding provisions of Section 8 (2) of the RTI Act, 2005 which reads as under: “Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any o the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.” The Appellant submitted that in order to promote transparency and accountability of the Government Institutions and its Functionaries, disclosure of information was warranted. On a query from the Commission on whether the information sought could be provided if it was being asked by the Parliament, the Respondent submitted that he was not aware if any such provision existed and clarified that his response pertained to only the stand of the Vigilance Department as this matter was transferred by CBEC to them. The Appellant further emphasised that despite seeking an opportunity for personal hearing from the FAA, no such hearing was provided to him which was essential in the interest of natural justice. It was Page 3 of 4 contended that for reasons stated in his second appeal, the information sought was in the larger public interest. He had explained in his Appeal itself that the information sought for is not exempted under Section 8 and 9 of the RTI Act, 2005 and that the denial of information was in violation of the principles of natural justice. The Commission observed that general/ generic information sought by the Appellant could be provided to him and claims of exemption under Section 8 (1) (j) were wrongly made. While claiming exemption under Section 8 (1) (j) of the RTI Act, 2005, the preliminary requirement was to ascertain whether the information sought was personal in nature and subsequently to determine, if any larger public interest was involved in the matter. In this context, the Commission draws reference to the observations made by the Hon’ble High Court of Delhi in its decision dated 13/07/2012 (W.P. (C) No. 1243 of 2011- UPSC vs. R.K. Jain) wherein while discussing on the issue of disclosure of information in larger public interest the Hon’ble High Court of Delhi had held as under: “‘The second half of the first part of clause (j) of Section 8(1) shows that when personal information in respect of a person is sought, the authority concerned shall weigh the competing claims i.e., the claim for the protection of personal information of the concerned person on the one hand, and the claim of public interest on the other, and if “public interest” justifies disclosure, i.e., the public interest outweighs the need for protection of personal information, the concerned authority shall disclose the information.” The Hon’ble Supreme Court of India in Girish Ramchandra Deshpande vs. Central Information Commission & ors. SLP(C) No. 27734 of 2012 dated 03/10/2012 had held as under: “14. The details disclosed by a person in his income tax returns are “personal information” which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information.” Furthermore, the Hon’ble Supreme Court in Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi (2012) 13 SCC 61 had held as under: 22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh AIR 1952 SC 252]). It also means the general welfare of the public that Page 4 of 4 warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]. Furthermore, the Hon’ble High Court of Punjab and Haryana in the matter of Subhash v. State Information Commission, Civil Writ Petition No.17718 of 2014 (O&M) dated 26.7.2016 held as under: “In the present case as noticed from the application, no personal information as such is being sought for against any one officer. General detail of the corruption cases pending against the serving and retired public servants and as to whether in spite of registration of such corruption cases, the service benefits to such officers had been given or not and which officer had passed such orders were sought for. It is thus apparent that what is being sought is the information relating to corruption and it is not the information pertaining to a particular individual as such. The respondent- Commissioner, however, in spite of noticing the fact that the appellant had raised this issue has not given any valid reason while upholding the orders of authorities below and has only given a stamp of approval to the same.” It was noted by the Commission that a similar matter had been adjudicated vide Appeal No. CIC/SB/A/2016/000935-BJ Dated 01.03.2017, wherein Chairman, CBEC was instructed to depute an officer to conduct an inquiry into the matter and provide information to the Appellant in accordance with the provisions of the RTI Act, 2005. The Appellant informed the Commission that the inquiry report had since been submitted by CBEC and that he proposes to file a reply in this regard. DECISION: Considering the facts of the case and the submissions made by both the parties, the Commission instructs the FAA to re-examine the matter and provide opportunity to the Appellant to be heard and then adjudicate the matter in accordance with the provisions of the RTI Act, 2005 within a period of 30 days from the date of receipt of this order. The Appeal stands disposed with the above direction. (Bimal Julka) Information Commissioner