IN 2009 CIC REVIEWED ITS OWN DECISION WHILE IN 2008 IT REMOVED THIS POSSIBILITIES
AT-16092009-06.doc
Page 1 of 9
CENTRAL INFORMATION COMMISSION
…..
F.No.CIC/AT/A/2009/000100
Dated, the 16th September, 2009.
PARTIES TO THE CASE:
Review-Petitioners : Shri Nihar Ranjan Banerjee
Chief Vigilance Officer
&
Shri Bidya Nand Mishra
Deputy General Manager (Vigilance) /
Tech. Secretary to CVO
Coal India Limited
Appellant : Shri M.N. Ghosh
Public authority : Coal India Limited
This second-appeal by Shri M.N. Ghosh was decided through
Commission’s order dated 25.05.2009. The third-party-respondents,
viz. the Vigilance Officers of the Coal India Limited approached the
Commission through a review-petition dated 25.06.2009 requesting that
parts of the Commission’s order needed to be reviewed as, according to
the review-petitioners, there was an error manifest in the face of the
order, i.e. it not incorporating some of the points made at the hearing
on 05.05.2009 on behalf of the review-petitioners.
2. The review-petition was taken on record and through
Commission’s notice dated 25.06.2009, a hearing was held on
29.07.2009 through videoconferencing (VC). The review-petitioners and
the appellant, Shri M.N.Ghosh were present at the NIC VC facility at
Kolkata. Commission conducted the hearing from its New Delhi office.
3. The review-petition is in the matter of Commission’s order dated
25.05.2009 in Appeal No.CIC/AT/A/2009/000100, relating to appellant’s
following queries:-
“ii) Copies of car hire bills since his joining till date.
iii) Copies of overtime bills for company owned car being used
by CVO and
AT-16092009-06.doc
Page 2 of 9
iv) Copy of TA bills of Sri B N MISHRA Dy.GM (Vig) Coal India
Limited for his tours to Delhi and Nagpur from 1.1.2007 till
date.”
4. The review-petitioners have argued that while upholding the
demand for disclosure of the information listed above on the basis of
Commission’s decision in G.R. Singh Vs. NPCC Limited; Appeal
No.CIC/AT/A/2006/00479, dated 14.02.2007 and on the ground that
such information could not be withheld from disclosure as it related to
a charge made on the budget of the public authority, Commission failed
to factor in the specific set of circumstances of the present
review-petitioners and their colleagues. It is the review-petitioners’
argument that if the specific averments made by the review-petitioners
on their behalf and on behalf of their colleague were considered, the
decision of the Commission would have been different.
5. These grounds, according to the review-petitioners, specific to
the requested information are as follows:-
Subject: Copies of car hire bills since review-petitioner’s
(Shri Nihar Ranjan Banerjee’s) joining in the present
office, till date and of overtime bills for a company owned
car being used by CVO IE the review petitioner.
The review petitioner has stated “…… that the disclosure of the
information may endanger the physical safety of the concerned
person. His location / movements cannot be revealed for which
the State has assigned him security cover on advice of State
police and CBI. Moreover, an investigation in the matter is also
going on. Besides, this relates to personal information the
disclosure of which would cause unwarranted invasion in the
privacy of the concerned person and does not have any overriding
public interest. As such providing the information is exempted
under Section 8(1)(g), 8(1)(h) and 8(1)(j) of the RTI Act, 2005”
Subject: TA bills of Shri B.N. Mishra, Dy. GM (Vigilance), CIL, on his
tours to Delhi and Nagpur from 01.01.2007 till date.
On this subject, review-petitioners have the following submissions
to make:-
AT-16092009-06.doc
Page 3 of 9
“…… the disclosure of the information may endanger the physical
safety of the concerned person. As such providing the
information is exempted under Sec. 8(1)(g) of the RTI Act, 2005.”
6. Review-petitioners have further submitted the following for
Commission’s consideration:-
“(iv) Apart from filing the written submission it was respectfully
apprised by the representing vigilance official of CIL, orally
during hearing by the Hon’ble Vigilance Commissioner on 5th May,
2009 that the information sought for by the appellant was
intended to intimidate and cause embarrassment to the CVO, CIL
and Dy.GM (Vigilance), CIL who investigated a complaint against
the appellant when he served as Chief Legal Manager in CIL and
the investigation led to unearthing documentary evidence against
him which led to the discovery that he (appellant) entered in the
employment of CIL at the relevant period in 1974 without having
requisite qualification of Bachelor’s degree in law as per the
then advertised norms and had thus secured employment in the
Govt. PSE fraudulently as alleged in the complaint against him
received and investigated by the above mentioned vigilance
officials of CIL. It was also respectfully submitted that the tours
undertaken by the CVO and Dy. GM (Vigilance) viz. Shri N.R.
Banerjee and Shri B.N. Mishra during the period covered in the
application under RTI Act were for the purpose of vigilance
investigation and in relation to enforcement of law. The
applicant being highly agitated of the on-going investigation
against him, attempted to track the movement of investigating
officials named above by seeking information about movement of
said vigilance officials by raising aforesaid queries under RTI Act
2005 so that he may reach to the source of information and
jeopardize / influence the evidence apart from creating an
atmosphere which would endanger the life or physical safety of
the said vigilance officials and source of information and
assistance given in confidence for investigation and law
enforcement. It was further submitted that as an outcome of
the vigilance investigation, disciplinary proceedings was initiated
as advised by Central Vigilance Commission by the Disciplinary
Authority viz., Chairman, CIL against the appellant while he was
in service at the post of Chief Legal Manager and that the
appellant moved a writ petition at Hon’ble High Court, Calcutta
to stall the disciplinary proceedings against him and the matter
is sub-judice.
AT-16092009-06.doc
Page 4 of 9
(v) In view of the aforesaid facts it is quite apparent that the
information sought for by the appellant was not intended to
serve any public purpose and, therefore, merited, exemption
under Sec. 8(1)(j) of the RTI Act 2005. Further providing of
information about the local movements of CVO, CIL at Kolkata by
asking for the logbook of vehicle and overtime bill of car driver
and the tour performed by Dy. GM (Vigilance), CIL to out stations
were in the course of investigation of complaints of corruption
against employees including the appellant and for the allied
issues related to investigation of all such complaints dealt during
the relevant period which are still in process of investigation and
has not reached to its logical end and revelation of which would
expose the source of information which merits exemption under
Sec. 8(1)(g), 8(1)(h) of RTI Act 2005.
(3) …………………..that the direction as contained under para-7
of the aforesaid decision dated 25th May, 2009 of the Hon’ble
Information Commissioner to disclose the information concerning
medical bills severing from it such details as may be considered
personal and private to the officer has been complied with.
Copy of information transmitted to the CPIO, CIL in compliance
of the said direction of the Hon’ble Information Commissioner is
marked as Annexure-6 [sic].
(4) ……………..that the citation of the Commission’s decision in
G.R. Singh Vs. NPCC Limited; Appeal No.CIC/AT/A/2006/00479;
Date of Decision: 14.02.2007 as mentioned at para-8 of the
decision dated 25th May, 2009 in the instant case is not relevant
to the context in as much as that the grounds considered at para-
6 & 7 of the said citation marked as Annexure-7 [sic] deal with
disclosure of TA bills of public authority in general and which do
not relate to tour performed by the investigating officer (in this
case the said vigilance officials of CIL) in relation to investigation
of complaints of corruption against the employees of PSE who are
the alleged public authorities as per the complaints. Therefore,
disclosure of tour performed by the investigating officer to
unearth material evidence and collect source information in the
interest of investigation would impede the process of
investigation or apprehension or prosecution of offenders in the
matter explained at para-5 above and, therefore, merits
exemption under Sec. 8(1)(g) & (h) of RTI Act 2005.
AT-16092009-06.doc
Page 5 of 9
(5) …………..that in view of the facts stated in paras above the
direction mentioned at para-8 of the impugned decision in
F.No.CIC/AT/A/2009/00100 dated 25th May, 2009 to allow
disclosure of information sought as referred at 4(ii), Para-4(iii) &
para-4(iv) of the said decision dated 25th May, 2009 stated above,
merits reconsiderations and review by the Hon’ble Information
Commissioner.”
7. It is, therefore, the request of the review-petitioners that
“the Hon’ble Information Commissioner be pleased to review the
decision as at para-8 in F.No.CIC/AT/A/2009/00100 dated 25th
May, 2009 with regard to queries contained in appellant’s
RTI-application referred at para 4(ii), 4(iii) & 4(iv) of the said
decision dated 25th May, 2009 and be pleased to grant exemption
under Sec. 8(1)(g), 8(1)(h) & 8(1)(j) of the RTI Act 2005.
It is further prayed that the Hon’ble Information Commissioner
be pleased to pass an interim order staying to provide the
information sought for as per para 4(ii), 4(iii) & 4(iv) of the said
decision dated 25th May, 2009 till the final disposal of the instant
review application.”
8. During the videoconferencing hearing, appellant, Shri M.N. Ghosh
(in Appeal No.CIC/AT/A/2009/000100) countered the averments of the
review-petitioners and stated that these were attempts to conceal
information, whose disclosure the review-petitioners were aware,
would show them in a false light and discomfit them. He stated that
there was unmistakable public purpose in disclosing such information
and a plea that this would somehow personally impact the
review-petitioners or affect their capacity to work efficiently and
purposefully, is nothing more than a convenient conjecture, and a facile
argument unsubstantiated by any evidence.
9. Appellant also questioned the review-petitioners’ right to seek
the review of the Commission’s order and the powers of the Commission
as to initiate such review. He argued that the RTI Act gave no such
powers to the Commission.
Decision:
10. I will first deal with appellant’s case that review-petition should
not be allowed on the ground that power of review of its order by the
Commission is not provided in the RTI Act.
AT-16092009-06.doc
Page 6 of 9
11. The question whether the Commission has the power to review its
own decision was elaborately discussed in Appeal No.CIC/MA/
A/2006/00622 (Rajnish Singh Chaudhary Vs. Union Public Service
Commission). In this case, the Commission has relied on the decisions
of the Apex Court in Patel Narshi Thakershi & Ors. Vs.
Pradyumanshighji Arjunsinghji ⎯ (AIR 1970 SC 1273) and Rajendra
Singh Vs. Governor, Andaman & Nicobar Islands & Ors. (AIR 2006 SC 75)
and had observed as under:-
“The net upshot of these two decisions of the Hon’ble Apex
Court is that while in substantive matters there may arguably be
no review. In cases of procedural infirmities which may have led
to or may be believed to have led to miscarriage of justice or
where there is an error apparent on the face of it, the absence
of a provision for review shall not be a bar on a given
statutory authority assuming that power. In other words,
silence of law in regard to review does not prohibit a statutory
authority from undertaking review in specific given
circumstances.”
12. As has been observed in the above case, the Central Information
Commission has been assigned somewhat a unique role under the Right
to Information Act, 2005. The Commission is the last court of appeal,
has the exclusive power to impose penalties on defaulting Public
Information Officers, and also has a role of superintendence and
direction of the information regime. It can direct public authorities to
take specific actions to promote the Right to Information. Given these
facts, to argue that the power of review does not inhere in the nature
of the CIC, itself would give scope to recurring miscarriage of justice
wherever the CIC may be in error. The power to correct through
review, therefore, is germane to promoting justice and to preventing its miscarriage.
The issue raised by the appellant is decided accordingly.
13. On the subject of review-petitioners’ claim that certain material
facts urged by them and their colleagues as third-parties in the above
second-appeal proceedings were omitted in the consideration of the
material for decision by the Commission, I noticed that although there
was an indirect reference to these facts in Commission’s order, they
were not directly used for determining the disclosure obligation for the
queries listed in paragraph 3 above.
AT-16092009-06.doc
Page 7 of 9
14. During the hearing, it was submitted by the review-petitioners
that the type of information which appellant had requested has always
been held ⎯ insofar as it related to the officers of the Vigilance
Department ⎯ as confidential within the meaning of Section 124 of the
Indian Evidence Act. There were plausible reasons for this. Such
officers perform sensitive duties and had to engage on a regular basis
with their sources and witnesses sometimes at odd hours. This
necessitated that records dealing with their movements and the
movement of their vehicles were kept confidential ⎯ often overtly and
always impliedly. This was done in public interest in order to ensure
that such officers carried-out their sensitive assignments somewhat
insulated from prying eyes of interested parties and those hostile
towards the officers. Almost every single employee of the public
authority these vigilance officers investigated, turned hostile towards
them and quite a few of such employees attempted to inflict harm on
them, either directly through physical threats and intimidation, or
indirectly through innuendos and threats of besmirching their
reputation by false propaganda. Tour details and use of vehicles
frequently are tools in the hands of such employees to carry-out their
vendetta against the officers of the Vigilance Department. The
pressure of false propaganda is such that the officers may feel
persecuted even if finally they come out fully vindicated. It is in public
interest that ordinarily information relating to tour details of such
officers is not allowed to pass into the hands of employees who may
have reasons to be hostile ⎯ even inimical ⎯ towards these Vigilance
Officers. Section 124 of the Indian Evidence Act was designed for such
contingencies and is entirely consistent with the provisions of RTI Act
(Section 11(1)).
15. Now, while the RTI Act, no-doubt, takes precedence over the
Indian Evidence Act in a matter of inconsistency between their
provisions, when the provisions of two Acts are consistent, the RTI Act
and the Indian Evidence Act provisions should be harmoniously
construed.
16. I find that there is ample consistency between Section 124 of the
Indian Evidence Act and Section 11(1) of the RTI Act read with Section
2(n) of the same Act.
17. Section 11(1) of the RTI Act stipulates consultation with
third-parties in matters where an information sought to be disclosed
relates to that third-party and is treated by that third-party as
confidential. Section 2(n) of the RTI Act states that a public authority
AT-16092009-06.doc
Page 8 of 9
can itself be a third-party in respect of the information it holds and
when such information is confidential information, that public authority
acquires all entitlements guaranteed to a third-party under Section
11(1) of the Act, viz. the right to be consulted regarding disclosure of
the information and the right to demand that the information may not
be disclosed as “public interest in disclosure” does not “outweigh in
importance any possible harm or injury to the interests of such
third-party”. In other words, an information coming within the scope
of Section 11(1) should be authorized to be disclosed only in public
interest.
18. In the context of the above, it needs to be examined whether the
information now requested to be divulged by the appellant and
contested by the review-petitioners should at-all be disclosed.
19. I agree with the review-petitioners, given the specific
circumstances and conditions surrounding the set of information now
requested by the appellant, viz. tour details, vehicle logbooks, purpose
of visits, overtime payments, etc., no public interest is served by their
disclosure. On the contrary, there is a distinct possibility that
disclosure of this information will compromise the functioning of the
Vigilance Officers ⎯ the review-petitioners ⎯ and not only expose
them to physical risks and intimidations, but impair their ability to
carry-out their sensitive assignments. Certain level of protection needs
to be given to such officers even in respect of disclosure of ordinary
looking information for, what is seemingly ordinary, assumes the
characteristics of the extraordinary in specific circumstances and
conditions, which according to me, are present in this case.
20. It is my view that the requested information should be declined
within the meaning of Section 11(1) of the RTI Act.
21. I noticed that, apart from the above, the review-petitioners have
also urged the Commission to examine the submissions made by them in
terms of Section 8(1)(g) of the RTI Act. I find merit in the submission.
As has been explained by the review-petitioners, in the circumstances
and the atmosphere in which they work and the specificity of their
sensitive assignment, the requested information had the potentiality of
endangering the officers’ life and their physical safety, apart from
leading to identification of the source of information or assistance given
in confidence for discharge of their law-enforcement functions as
Vigilance Officers.
AT-16092009-06.doc
Page 9 of 9
22. It is true that, as now urged by the review-petitioners, these
points made by the review-petitioners’ rep. during hearing on
05.05.2009, were not fully reflected on by the Commission in making its
decision dated 25.05.2009. I agree that given the context of this case,
there was an error on the face of the order made on 25.05.2009, which
needed to be corrected in the interest of justice and in the interest of
providing protection to officers who work in trying conditions in
handling sensitive assignments such as vigilance duties.
23. I, therefore, order that in partial modification of my order dated
25.05.2009 in Appeal No.CIC/AT/A/2009/000100, information as listed at paragraph 3 above shall not be disclosed to the appellant.
24. Review-petition is disposed of accordingly.
25. Copy of this direction be sent to the parties.
( A.N. TIWARI )
INFORMATION COMMISSIONER
AT-16092009-06.doc
Page 1 of 9
CENTRAL INFORMATION COMMISSION
…..
F.No.CIC/AT/A/2009/000100
Dated, the 16th September, 2009.
PARTIES TO THE CASE:
Review-Petitioners : Shri Nihar Ranjan Banerjee
Chief Vigilance Officer
&
Shri Bidya Nand Mishra
Deputy General Manager (Vigilance) /
Tech. Secretary to CVO
Coal India Limited
Appellant : Shri M.N. Ghosh
Public authority : Coal India Limited
This second-appeal by Shri M.N. Ghosh was decided through
Commission’s order dated 25.05.2009. The third-party-respondents,
viz. the Vigilance Officers of the Coal India Limited approached the
Commission through a review-petition dated 25.06.2009 requesting that
parts of the Commission’s order needed to be reviewed as, according to
the review-petitioners, there was an error manifest in the face of the
order, i.e. it not incorporating some of the points made at the hearing
on 05.05.2009 on behalf of the review-petitioners.
2. The review-petition was taken on record and through
Commission’s notice dated 25.06.2009, a hearing was held on
29.07.2009 through videoconferencing (VC). The review-petitioners and
the appellant, Shri M.N.Ghosh were present at the NIC VC facility at
Kolkata. Commission conducted the hearing from its New Delhi office.
3. The review-petition is in the matter of Commission’s order dated
25.05.2009 in Appeal No.CIC/AT/A/2009/000100, relating to appellant’s
following queries:-
“ii) Copies of car hire bills since his joining till date.
iii) Copies of overtime bills for company owned car being used
by CVO and
AT-16092009-06.doc
Page 2 of 9
iv) Copy of TA bills of Sri B N MISHRA Dy.GM (Vig) Coal India
Limited for his tours to Delhi and Nagpur from 1.1.2007 till
date.”
4. The review-petitioners have argued that while upholding the
demand for disclosure of the information listed above on the basis of
Commission’s decision in G.R. Singh Vs. NPCC Limited; Appeal
No.CIC/AT/A/2006/00479, dated 14.02.2007 and on the ground that
such information could not be withheld from disclosure as it related to
a charge made on the budget of the public authority, Commission failed
to factor in the specific set of circumstances of the present
review-petitioners and their colleagues. It is the review-petitioners’
argument that if the specific averments made by the review-petitioners
on their behalf and on behalf of their colleague were considered, the
decision of the Commission would have been different.
5. These grounds, according to the review-petitioners, specific to
the requested information are as follows:-
Subject: Copies of car hire bills since review-petitioner’s
(Shri Nihar Ranjan Banerjee’s) joining in the present
office, till date and of overtime bills for a company owned
car being used by CVO IE the review petitioner.
The review petitioner has stated “…… that the disclosure of the
information may endanger the physical safety of the concerned
person. His location / movements cannot be revealed for which
the State has assigned him security cover on advice of State
police and CBI. Moreover, an investigation in the matter is also
going on. Besides, this relates to personal information the
disclosure of which would cause unwarranted invasion in the
privacy of the concerned person and does not have any overriding
public interest. As such providing the information is exempted
under Section 8(1)(g), 8(1)(h) and 8(1)(j) of the RTI Act, 2005”
Subject: TA bills of Shri B.N. Mishra, Dy. GM (Vigilance), CIL, on his
tours to Delhi and Nagpur from 01.01.2007 till date.
On this subject, review-petitioners have the following submissions
to make:-
AT-16092009-06.doc
Page 3 of 9
“…… the disclosure of the information may endanger the physical
safety of the concerned person. As such providing the
information is exempted under Sec. 8(1)(g) of the RTI Act, 2005.”
6. Review-petitioners have further submitted the following for
Commission’s consideration:-
“(iv) Apart from filing the written submission it was respectfully
apprised by the representing vigilance official of CIL, orally
during hearing by the Hon’ble Vigilance Commissioner on 5th May,
2009 that the information sought for by the appellant was
intended to intimidate and cause embarrassment to the CVO, CIL
and Dy.GM (Vigilance), CIL who investigated a complaint against
the appellant when he served as Chief Legal Manager in CIL and
the investigation led to unearthing documentary evidence against
him which led to the discovery that he (appellant) entered in the
employment of CIL at the relevant period in 1974 without having
requisite qualification of Bachelor’s degree in law as per the
then advertised norms and had thus secured employment in the
Govt. PSE fraudulently as alleged in the complaint against him
received and investigated by the above mentioned vigilance
officials of CIL. It was also respectfully submitted that the tours
undertaken by the CVO and Dy. GM (Vigilance) viz. Shri N.R.
Banerjee and Shri B.N. Mishra during the period covered in the
application under RTI Act were for the purpose of vigilance
investigation and in relation to enforcement of law. The
applicant being highly agitated of the on-going investigation
against him, attempted to track the movement of investigating
officials named above by seeking information about movement of
said vigilance officials by raising aforesaid queries under RTI Act
2005 so that he may reach to the source of information and
jeopardize / influence the evidence apart from creating an
atmosphere which would endanger the life or physical safety of
the said vigilance officials and source of information and
assistance given in confidence for investigation and law
enforcement. It was further submitted that as an outcome of
the vigilance investigation, disciplinary proceedings was initiated
as advised by Central Vigilance Commission by the Disciplinary
Authority viz., Chairman, CIL against the appellant while he was
in service at the post of Chief Legal Manager and that the
appellant moved a writ petition at Hon’ble High Court, Calcutta
to stall the disciplinary proceedings against him and the matter
is sub-judice.
AT-16092009-06.doc
Page 4 of 9
(v) In view of the aforesaid facts it is quite apparent that the
information sought for by the appellant was not intended to
serve any public purpose and, therefore, merited, exemption
under Sec. 8(1)(j) of the RTI Act 2005. Further providing of
information about the local movements of CVO, CIL at Kolkata by
asking for the logbook of vehicle and overtime bill of car driver
and the tour performed by Dy. GM (Vigilance), CIL to out stations
were in the course of investigation of complaints of corruption
against employees including the appellant and for the allied
issues related to investigation of all such complaints dealt during
the relevant period which are still in process of investigation and
has not reached to its logical end and revelation of which would
expose the source of information which merits exemption under
Sec. 8(1)(g), 8(1)(h) of RTI Act 2005.
(3) …………………..that the direction as contained under para-7
of the aforesaid decision dated 25th May, 2009 of the Hon’ble
Information Commissioner to disclose the information concerning
medical bills severing from it such details as may be considered
personal and private to the officer has been complied with.
Copy of information transmitted to the CPIO, CIL in compliance
of the said direction of the Hon’ble Information Commissioner is
marked as Annexure-6 [sic].
(4) ……………..that the citation of the Commission’s decision in
G.R. Singh Vs. NPCC Limited; Appeal No.CIC/AT/A/2006/00479;
Date of Decision: 14.02.2007 as mentioned at para-8 of the
decision dated 25th May, 2009 in the instant case is not relevant
to the context in as much as that the grounds considered at para-
6 & 7 of the said citation marked as Annexure-7 [sic] deal with
disclosure of TA bills of public authority in general and which do
not relate to tour performed by the investigating officer (in this
case the said vigilance officials of CIL) in relation to investigation
of complaints of corruption against the employees of PSE who are
the alleged public authorities as per the complaints. Therefore,
disclosure of tour performed by the investigating officer to
unearth material evidence and collect source information in the
interest of investigation would impede the process of
investigation or apprehension or prosecution of offenders in the
matter explained at para-5 above and, therefore, merits
exemption under Sec. 8(1)(g) & (h) of RTI Act 2005.
AT-16092009-06.doc
Page 5 of 9
(5) …………..that in view of the facts stated in paras above the
direction mentioned at para-8 of the impugned decision in
F.No.CIC/AT/A/2009/00100 dated 25th May, 2009 to allow
disclosure of information sought as referred at 4(ii), Para-4(iii) &
para-4(iv) of the said decision dated 25th May, 2009 stated above,
merits reconsiderations and review by the Hon’ble Information
Commissioner.”
7. It is, therefore, the request of the review-petitioners that
“the Hon’ble Information Commissioner be pleased to review the
decision as at para-8 in F.No.CIC/AT/A/2009/00100 dated 25th
May, 2009 with regard to queries contained in appellant’s
RTI-application referred at para 4(ii), 4(iii) & 4(iv) of the said
decision dated 25th May, 2009 and be pleased to grant exemption
under Sec. 8(1)(g), 8(1)(h) & 8(1)(j) of the RTI Act 2005.
It is further prayed that the Hon’ble Information Commissioner
be pleased to pass an interim order staying to provide the
information sought for as per para 4(ii), 4(iii) & 4(iv) of the said
decision dated 25th May, 2009 till the final disposal of the instant
review application.”
8. During the videoconferencing hearing, appellant, Shri M.N. Ghosh
(in Appeal No.CIC/AT/A/2009/000100) countered the averments of the
review-petitioners and stated that these were attempts to conceal
information, whose disclosure the review-petitioners were aware,
would show them in a false light and discomfit them. He stated that
there was unmistakable public purpose in disclosing such information
and a plea that this would somehow personally impact the
review-petitioners or affect their capacity to work efficiently and
purposefully, is nothing more than a convenient conjecture, and a facile
argument unsubstantiated by any evidence.
9. Appellant also questioned the review-petitioners’ right to seek
the review of the Commission’s order and the powers of the Commission
as to initiate such review. He argued that the RTI Act gave no such
powers to the Commission.
Decision:
10. I will first deal with appellant’s case that review-petition should
not be allowed on the ground that power of review of its order by the
Commission is not provided in the RTI Act.
AT-16092009-06.doc
Page 6 of 9
11. The question whether the Commission has the power to review its
own decision was elaborately discussed in Appeal No.CIC/MA/
A/2006/00622 (Rajnish Singh Chaudhary Vs. Union Public Service
Commission). In this case, the Commission has relied on the decisions
of the Apex Court in Patel Narshi Thakershi & Ors. Vs.
Pradyumanshighji Arjunsinghji ⎯ (AIR 1970 SC 1273) and Rajendra
Singh Vs. Governor, Andaman & Nicobar Islands & Ors. (AIR 2006 SC 75)
and had observed as under:-
“The net upshot of these two decisions of the Hon’ble Apex
Court is that while in substantive matters there may arguably be
no review. In cases of procedural infirmities which may have led
to or may be believed to have led to miscarriage of justice or
where there is an error apparent on the face of it, the absence
of a provision for review shall not be a bar on a given
statutory authority assuming that power. In other words,
silence of law in regard to review does not prohibit a statutory
authority from undertaking review in specific given
circumstances.”
12. As has been observed in the above case, the Central Information
Commission has been assigned somewhat a unique role under the Right
to Information Act, 2005. The Commission is the last court of appeal,
has the exclusive power to impose penalties on defaulting Public
Information Officers, and also has a role of superintendence and
direction of the information regime. It can direct public authorities to
take specific actions to promote the Right to Information. Given these
facts, to argue that the power of review does not inhere in the nature
of the CIC, itself would give scope to recurring miscarriage of justice
wherever the CIC may be in error. The power to correct through
review, therefore, is germane to promoting justice and to preventing its miscarriage.
The issue raised by the appellant is decided accordingly.
13. On the subject of review-petitioners’ claim that certain material
facts urged by them and their colleagues as third-parties in the above
second-appeal proceedings were omitted in the consideration of the
material for decision by the Commission, I noticed that although there
was an indirect reference to these facts in Commission’s order, they
were not directly used for determining the disclosure obligation for the
queries listed in paragraph 3 above.
AT-16092009-06.doc
Page 7 of 9
14. During the hearing, it was submitted by the review-petitioners
that the type of information which appellant had requested has always
been held ⎯ insofar as it related to the officers of the Vigilance
Department ⎯ as confidential within the meaning of Section 124 of the
Indian Evidence Act. There were plausible reasons for this. Such
officers perform sensitive duties and had to engage on a regular basis
with their sources and witnesses sometimes at odd hours. This
necessitated that records dealing with their movements and the
movement of their vehicles were kept confidential ⎯ often overtly and
always impliedly. This was done in public interest in order to ensure
that such officers carried-out their sensitive assignments somewhat
insulated from prying eyes of interested parties and those hostile
towards the officers. Almost every single employee of the public
authority these vigilance officers investigated, turned hostile towards
them and quite a few of such employees attempted to inflict harm on
them, either directly through physical threats and intimidation, or
indirectly through innuendos and threats of besmirching their
reputation by false propaganda. Tour details and use of vehicles
frequently are tools in the hands of such employees to carry-out their
vendetta against the officers of the Vigilance Department. The
pressure of false propaganda is such that the officers may feel
persecuted even if finally they come out fully vindicated. It is in public
interest that ordinarily information relating to tour details of such
officers is not allowed to pass into the hands of employees who may
have reasons to be hostile ⎯ even inimical ⎯ towards these Vigilance
Officers. Section 124 of the Indian Evidence Act was designed for such
contingencies and is entirely consistent with the provisions of RTI Act
(Section 11(1)).
15. Now, while the RTI Act, no-doubt, takes precedence over the
Indian Evidence Act in a matter of inconsistency between their
provisions, when the provisions of two Acts are consistent, the RTI Act
and the Indian Evidence Act provisions should be harmoniously
construed.
16. I find that there is ample consistency between Section 124 of the
Indian Evidence Act and Section 11(1) of the RTI Act read with Section
2(n) of the same Act.
17. Section 11(1) of the RTI Act stipulates consultation with
third-parties in matters where an information sought to be disclosed
relates to that third-party and is treated by that third-party as
confidential. Section 2(n) of the RTI Act states that a public authority
AT-16092009-06.doc
Page 8 of 9
can itself be a third-party in respect of the information it holds and
when such information is confidential information, that public authority
acquires all entitlements guaranteed to a third-party under Section
11(1) of the Act, viz. the right to be consulted regarding disclosure of
the information and the right to demand that the information may not
be disclosed as “public interest in disclosure” does not “outweigh in
importance any possible harm or injury to the interests of such
third-party”. In other words, an information coming within the scope
of Section 11(1) should be authorized to be disclosed only in public
interest.
18. In the context of the above, it needs to be examined whether the
information now requested to be divulged by the appellant and
contested by the review-petitioners should at-all be disclosed.
19. I agree with the review-petitioners, given the specific
circumstances and conditions surrounding the set of information now
requested by the appellant, viz. tour details, vehicle logbooks, purpose
of visits, overtime payments, etc., no public interest is served by their
disclosure. On the contrary, there is a distinct possibility that
disclosure of this information will compromise the functioning of the
Vigilance Officers ⎯ the review-petitioners ⎯ and not only expose
them to physical risks and intimidations, but impair their ability to
carry-out their sensitive assignments. Certain level of protection needs
to be given to such officers even in respect of disclosure of ordinary
looking information for, what is seemingly ordinary, assumes the
characteristics of the extraordinary in specific circumstances and
conditions, which according to me, are present in this case.
20. It is my view that the requested information should be declined
within the meaning of Section 11(1) of the RTI Act.
21. I noticed that, apart from the above, the review-petitioners have
also urged the Commission to examine the submissions made by them in
terms of Section 8(1)(g) of the RTI Act. I find merit in the submission.
As has been explained by the review-petitioners, in the circumstances
and the atmosphere in which they work and the specificity of their
sensitive assignment, the requested information had the potentiality of
endangering the officers’ life and their physical safety, apart from
leading to identification of the source of information or assistance given
in confidence for discharge of their law-enforcement functions as
Vigilance Officers.
AT-16092009-06.doc
Page 9 of 9
22. It is true that, as now urged by the review-petitioners, these
points made by the review-petitioners’ rep. during hearing on
05.05.2009, were not fully reflected on by the Commission in making its
decision dated 25.05.2009. I agree that given the context of this case,
there was an error on the face of the order made on 25.05.2009, which
needed to be corrected in the interest of justice and in the interest of
providing protection to officers who work in trying conditions in
handling sensitive assignments such as vigilance duties.
23. I, therefore, order that in partial modification of my order dated
25.05.2009 in Appeal No.CIC/AT/A/2009/000100, information as listed at paragraph 3 above shall not be disclosed to the appellant.
24. Review-petition is disposed of accordingly.
25. Copy of this direction be sent to the parties.
( A.N. TIWARI )
INFORMATION COMMISSIONER
No comments:
Post a Comment