CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2008/00060 dated 28.1.2008
Right to Information Act 2005 - Section 19
Appellant - Shri P. S. Naidu
Respondent - Central Vigilance Commission
Decision announced : 6.8.2009
Facts
:
By an application of 7.1.07, received in the CVC on 16.1.07, Shri P.S.
Naidu of Masab Tank, Hyderabad (AP) sought the following information from
CPIO Shri K. L. Ahuja, Director, CVC :
“1) Copy of Disciplinary Authority’s recommendations to the
CVC at the First and Second stage pertaining to the
disciplinary action against me in the a/c of M/s SSP Polymer
Industries Ltd. (Hyderabad Main Br.)
2) Copy of Disciplinary Authority’s recommendations to CVC at
the first and second stage pertaining to Shri P.R. Kalyan
Raman and Shri D.V.Rao (both have been charged for
lapses in the same account M/s SSP Polymer Industries
Ltd.) for joint involvement of alleged irregularities.
3) Copy of CVC’s advice in terms of its circular No. 99/Vg/66
dated 28.9.2000 pertaining to me, Shri P. V. Kalyanaraman
and Shri D.V.Rao in the matter.
4) Copy of Disciplinary Authority’s recommendations to the
CVC in the first and the second stage pertaining to the
disciplinary cases of Shri P.V.G. Murlikrishna, Shri P.V.
Premnath and Shri P. Satyanarayana in the A/c of M/s
Electronic Machine Tools of Azamabad Br., Hyderabad.”
To this Shri Naidu received the following response from Shri A. K. Gupta,
Under Secy., CVC dated 20.6.07 :
“S. No. 1
The extracts of Disciplinary Authority’s recommended actions to the
CVC at the 1st stage advice and 2nd stage advice pertaining to Shri
P.S. Naidu, received vide letter No. Vig. HO.256:8323 dated
7.2.2001 and Vig:Hyd:7(B):5510 dated 21.12.2001 are enclosed.
S. No. 2 to 4
The information in respect of other officers is denied u/s 8(1)(j) of
the RTI Act, since the information is personal to other officers and
would affect their privacy.”
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Aggrieved by this response, Shri Naidu moved his first appeal on 7.7.07
before the Appellate Authority, CVC pleading as follows:
“The section 8(1)(j), itself has an enabling cause, which states that
the Central / State Public Information Office may disclose such
information, if larger Public interest is justified. In the instant case
the larger public interest lies in exposing the real culprit at high
places, who is responsible for fostering a Bad account promoted by
disreputed persons and causing eventually loss to public money.
The disclosure would greatly sub serve one of the awed objectives
of justice, which is well enshrined in the popular statement, quote “If
a culprit is not punished, at least it should be ensured that an
innocent is not put to gallows”. By not making available the
information being sought, I will be deprived of proving my non-
complicity in the matter and at the same time may not be in a
position to expose the real culprits. Further, the section 8(1)(J)
would derail the quintessence of RTI Act viz transparency. On this
ground any information pertaining to a third person can be put
under the carpet and such denials shall benefit the offender and
deny succor to the aggrieved.”
Upon this, Shri V. Kannan in his order of 9.8.07, has held as follows:
“I find that the recommendations of the Bank in respect of the
disciplinary proceedings as mentioned in your application were
received in the Commission under fiduciary relationship. The CIC
in its decision No. 55/IC(A)/2006 on the appeal of Shri Chaman
Mathur has held that information submitted in fiduciary capacity
cannot be disclosed without the concurrence of 3rd party u/s 11(1)
of the RTI Act. As the Bank in response to notice u/s 11 of the RTI
Act had submitted that the information in respect of other officers
might not be disclosed, I uphold the decision of the CPIO denying
you the information. However, copies of CVC advice dated 20.3.01
and 28.1.02 are enclosed.”
Appellant’s prayer in his second appeal before us is as below:
“I request you to kindly hold an inquiry under Sec. 18(2) of the
Act, as there are valid and cogent grounds to render justice to
me and to expose the delinquent officers who have caused
huge loss to the exchequer by conspiring with higher ups.”
He has sought support for this plea with the following contention:
“What information I sought is the outcome of a Departmental inquiry
and, therefore, it cannot be attributed to invasion of privacy. The
Bank for fear of being exposed to its partisan, skewed and
perfunctory investigation is denying the information being sought.”
2
The appeal was heard through videoconference on 6th July, 2009. The
following are present:
Appellant: (as NIC Studio, Hyderabad)
Shri P.S. Naidu
Respondent:
Shri Arun Nahar, Advisor
Shri Raj Kumar, Section Officer
Shri Arun Nahar, Advisor, CVC submitted copies of the objections raised
by Bank of India to the disclosure of information sought by appellant Shri P.S.
Naidu. Appellant Shri Naidu on the other hand submitted that the information
sought was with regard to a public enquiry and, therefore, cited provisos to
Sections 8 (1) (j) and 11 (1), both of which refer in different manner to the public
interest override.
We agree that it cannot be argued that where an individual is a subject of
a departmental enquiry then exemption can be sought as having no relationship
to any public activity and, therefore, public interest. However, the third party in
this case is General Manager (HR), Bank of India, Mumbai. The third party i.e.
General Manager (HR), Bank of India, Star House, C-5, G-Block, Bandra-Kurla
Complex, Bandra (East), Mumbai has every right to be heard before a decision is
finalised in the matter. The hearing was, therefore, adjourned to 5th August, 2009
at 12.30 p.m. by videoconference when current parties were required to be
present together with third party. Accordingly, the matter was heard on 5.8.2009
through videoconference. The following are present:
Appellant at NIC Studio, Hyderabad
Shri P. S. Naidu
Respondent at CIC Studio, New Delhi
Shri Arun Nahar, Advisor
Third Party at NIC Studio, Mumbai
Shri P.A. Kalyan Sundaram, GM(HR) BOI, Mumbai
Shri M.C. Mule, CVO, Bank of India
Shri Satish Chander, CAPIO & DGM (Law) BOIShri Arun Nahar, Advisor CVC submitted that refusal to provide the
information by CVC was purely on the basis of the objection raised by the Bank.
He, therefore, had nothing further to submit in the matter.
3
Respondent Shri P. A. Kalyan Sundaram, GM(HR) submitted that the
Bank has no objection to disclosure of information concerning appellant Sh.
Naidu. Their objection has arisen regarding providing information on the enquiry
concerning S/Shri P. R. Kalyanraman, D.V. Rao, P.V.G. Murlikrishnan, P. V.
Prem Nath and P.S. Satyanarain. Shri M. C. Mule CVO further submitted that
the information asked for at Point No. 4 in fact concerns a different case with
which Shri Naidu has no connection whatever and should not be of concern to
him. Shri Kalyan Sundaram also submitted that the Bank follows a hierarchical
structure and, therefore, the roles assigned to different officers were different
having little or no bearing on each other. Hence sharing of information with
regard to officers with different responsibilities would not be in order. On the plea
of appellant Sh. Naidu that he needed this information so as to compare the
action taken with regard to that taken in his own case Shri Satish Chander,
CAPIO and DGM (Law) submitted that such a plea would not stand in Court.
Appellant Shri Naidu submitted that there is no way in which disclosure of
the information in this case can lead to endangering the life or physical safety of
any person or identify the source of information given in confidence for law
enforcement or security purposes. There was therefore no ground for exemption
u/s 8(1) (g). He further argued that the information sought cannot qualify for
exemption under sec. 8(1)(j) since the proviso to sec. 8(1) (j) provides that “the
information which cannot be denied to the Parliament or a State Legislature shall
not be denied to any person”. Shri Naidu also submitted that the Manual of
Instructions of the Bank defines the role-play by officers and, therefore, the plea
of respondents Shri Kalyan Sundaram G.M. that there is no such role other than
a hierarchal structure is not correct.
DECISION NOTICE
There are two grounds on which the GM (HR) BOI Mumbai has sought
exemption from disclosure of the information sought against questions 2, 3 & 4 of
appellant Shri Naidu’s application. The question of whether an argument will
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stand in court is immaterial in that we are concerned only with providing of
information held, and not what may be construed wherefrom. These grounds are
sub sections (g) & (j) of sec. 8(1). These two sub sections read as follows:
8(1)(g)
information, the disclosure of which would endanger the life or
physical safety of any person or identify the source of information or
assistance given in confidence for law enforcement or security
purposes 1 ;
8(1)(j)
information which relates to personal information the disclosure of
which has no relationship to any public activity or interest, 2 or which
would cause unwarranted invasion of the privacy of the individual
unless the Central Public Information Officer or the State Public
Information Officer or the appellate authority, as the case may be,
is satisfied that the larger public interest justifies the disclosure of
such information:
Since information sought concerns the result of enquiries conducted
against certain officers, and do not constitute information given in confidence by
these officers to an investigating agency, we cannot see how the conditions on
which this exemption stands, as underlined by us, can apply under sub-section
(g) of sec. 8(1) in this case.
On the question of sec. 8(1)(j) on the other hand, we have no clear
definition of what is meant by “invasion of privacy” within the RTI Act. We have
in India no equivalent of UK’s Date Protection Act, 1998, Sec 2 of which, titled
‘Sensitive Personal Data’, reads as follows:
“In this Act “sensitive personal data” means personal data
consisting of information as to:
a) The racial or ethnic origin of the data subject.
b) His political opinions.
c) His religious beliefs or other beliefs of a similar nature.
d) Whether he is a member of a Trade Union.
e) His physical or mental health or condition.
f) His sexual life.
g) The commission or alleged commission by him of any
offence.
1
Underlined by us for reference
2
Underlined by us
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h) Any proceedings for any offence committed or alleged to
have been committed by him, the disposal of such
proceedings or the sentence of any court in such
proceedings.
If we were to construe privacy to mean protection of personal data, this
would be a suitable starting point to help define the concept. The US
Restatement of the Law, Second, Torts, 652 on the other hand, defines the
invasion of Privacy in the following manner:
One, who intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or his private affairs or concerns, is
subject to liability to the other for invasion of his privacy, if the
intrusion would be highly offensive to a reasonable person.
Besides, the Supreme Court of India in Kharak Singh’s case (AIR 1963
SC 1295) held that right to privacy is a guaranteed right under the Constitution of
India. In Rajagopal v. State of Tamil Nadu, 1994(6) SCC 632 and in P.U.C.L. v.
Union of India, (1997) ISCC 301 Supreme Court reiterated the law that right to
privacy is part of the right to ‘life’ and ‘personal liberty’ enshrined under Article 21
of the Constitution. In these decisions, the Supreme Court placed reliance on the
International Treaties to which India is signatory and came to a conclusion that
Article 21 read with relevant Article in the International Treaty/Covenant would
lead to a conclusion that right to privacy is part of Article 21.
The Supreme Court recognized that right to privacy by itself has not been
identified under the Constitution and that as a concept; it may be too broad and
moralistic to define it judicially. Whether the right to privacy can be claimed or
has been infringed in a given case would depend on facts of each case.
Describing the origin of the right to privacy, the Hon’ble Apex Court in
Rajagopal’s case cited above observed as follows: –
“The right to privacy as an independent and distinctive concept
originated in the field to Tort Law, under which a new cause of
action for damages resulting from unlawful invasion of privacy was
recognised. This right has two aspects which are but two faces of
the same coin: (1) the General law of privacy which affords a tort
action for damages resulting from an unlawful invasion of privacy
and (2) the constitutional recognition given to the right to privacy
which protects personal privacy against unlawful governmental6
invasion….. In recent times, however, this right has acquired a
constitutional status.”
If the information sought, therefore, would amount to invasion of privacy it
could no doubt have been denied. However, the investigation on which
information has been sought involved a decidedly public activity. In this case
what is sought is only a copy of the disciplinary authority’s recommendations to
CVC and a copy of CVC’s advice meaning that not even proceedings for any
offence alleged to have been committed, the disposal of such proceedings or
indeed a copy of the original enquiry report has been called for. Clearly this is
not a case where disclosure will amount to invasion of privacy. CPIO Shri Arun
Nahar, Advisor, CVC will therefore, now provide this information to Shri
Naidu within ten working days from the date of receipt of this Decision
Notice. This appeal is allowed. There will be no costs
Reserved in the hearing, this decision is announced in open chamber on
this sixth day of August, 2009. Notice of this decision be given free of cost to the
parties.
(Wajahat Habibullah)
Chief Information Commissioner
6.8.2009
Authenticated true copy. Additional copies of orders shall be supplied against
application and payment of the charges, prescribed under the Act, to the CPIO
of this Commission.
(Pankaj Shreyaskar)
Joint Registrar
6.8.2009
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