CENTRAL INFORMATION COMMISSION
Complaint No. CIC/WB/C/2008/0006 dated 14-1-2008
Right to Information Act 2005 - Section 18
Appellant: Shri Raj Singh Kadian
Respondent: Border Security Force (BSF) Ministry of Home Affairs (MHA)
Decision announced: 7.8.2009
FACTS
By an application of 29-11-06 Shri Raj Singh Kadian, Comdt, BSF,
Kupwara, J&K applied to the PIO, Shri S.S. Chatrath, DIG, Hq. BSF, Kupwara
seeking the following information:
“I request you to arrange for providing me the copies of the note
sheets prepared in this case at HQ DG BSF and HQ BSF
Shillong Frontier.”
He based this request on the allegation that the decisions taken by the
Department in the case against him were infringing upon his human rights. In
his reply of 10-8-2007 Shri K.G. Keswani, Addl. DIG, (CONFD) of DG, BSF,
however, refused the information as below:
“Under Section 24 of RTI Act, 2005 the provision made for
providing information to the public do not apply to the
intelligence/ security organization, hence, no action can be
taken on your application.”
Aggrieved by this response Shri Raj Singh Kadian has moved a
complaint before us u/s 18 (1) (b) of the RTI Act with the following prayer:
“It is indeed painful to experience the apathetic manner in which
the BSF has dealt with my request, showing scant regard to the
provisions of the RTI Act, 2005, especially in the light of the fact
that on my earlier request the department (i.e. HQ IG BSF
Srinagar) vide their letter number 12475 dated 20.11.2006 did
provide me the following under the RTI Act, 2005 about the
identity of the officer who made me to serve me under the junior
officer for no fault of mine.
I pray that the information requested for be provided to me and
further appropriate action as deemed fit be taken in this case.”
In this complaint Shri Raj Singh Kadian has also submitted as follows:
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“I was compelled to file a Writ Petition (C) No. 19014/06 before
the Hon’ble High Court of Delhi. As of now my petition stands
admitted and the Hon’ble Court has stayed the action
contemplated against me in this show cause notice.
The pendency of the matter doesn’t seem to be any ground for
the BSF to refuse information to me by pre-texting that the
matter is subjudice in the Court of law, as has been done by the
BSF in this case.’
In response to our appeal notice Shri M.K. Chhabra, DIG (Personnel),
BSF has on behalf of DG, BSF submitted detailed comments dated 13-7-09.
In this response DIG, BSF has contended as follows:
“(c) In the instant case, the department has not violated any
human right as the action taken against Shri R. S. Kadian
is as per provisions available under BSF Act & Rules and
also based on the evidence available on the record in the
General Security Force Court proceedings. Moreover,
MHA has also examined the same in detail and conveyed
approval of Competent Authority for termination of service
of the officer under the provisions made in Rule 20 of
BSF Rules.
(d) Moreover, Shri R. S. Kadian was tried by a General
Security Force Court on following four charges all under
Section 40 of BSF Act:”
From the description of the cases it would appear that the case against
Shri Raj Singh Kadian emanated from an alleged action where under Shri Raj
Singh Kadian had without authority “ordered No. 77187000 Sub A S Jamwal
of his unit to strip off No. 891426026 Constable Mahabir Singh, No. 93133029
Constable Pradip Dey, and No. 970100041 Constable (tailor) Gopal Ram of
same unit during roll call by saying that ‘SAHEB, IN TEENON KO AAJ ROLL
CALL MEIN BAHAR NIKALNA AUR ROLL CALL MEIN SAB KE SAMNE
PURA NANGA KARNA, or words to that effect.”
On the question of the case before the High Court of Delhi Shri
Chhabra has submitted as follows:
“On 26th February, 2007 Hon’ble High Court of Delhi issued
direction that the respondents shall be free to pass an
appropriate order pursuant to the impugned show cause notice.
The same shall not be given effect without the permission of the
court.’
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Consequently, “after considering all the facts and circumstances of the
case, legal provision and giving full opportunity, the officer retired from service
with pensionary benefits under Rule 20 of the BSF Rules 1969. However, the
effect of this order shall remain deferred till permission is granted by the
Hon’ble High Court of Delhi in term so fits order dated 26th February, 2007.”
Shri Chhabra has, then, concluded his argument as follows:
“The case of Shri R. S. Kadian was dealt as per the provision of
BSF Act & Rule and directions issued by MHA being a
competent authority. Moreover, the direction/ instructions
passed by the Hon’ble High Court from time to time were also
complied with.”
The complaint was heard on 7-8-2009. The following are present.
Complainant
Shri Raj Singh Kadian.
Respondents
Shri M. K. Chhabra, DIG, BSF.
Shri Vijay Yadav, LOGDC-I Comdt.
Shri K. C. Panda, Asilmin.
DECISION NOTICE
Complainant Shri Raj Singh Kadian submitted that in this case the
reason why he has made an allegation of human right violation is because he
was acquitted by Court Martial and the perjurers who made the false
complaint before him bringing him before the Court Martial have been found
guilty, yet the BSF has persisted in harassing him and he has been subjected
to adverse remarks repeatedly by a senior officer of the BSF.
Shri Vijay Yadav, Comdt. BSF submitted that Shri Raj Singh Kadian
has indeed been acquitted by the General Security Force Court but that the
DG having considered the action incomplete had proceeded under Rule 20 of
the BSF Act as a result of which the matter has also been considered at the
level of MHA which has approved the orders of compulsory retirement with
pensionary benefits. That order has now been held in abeyance till such time
as clearance is received from the Hon’ble High Court of Delhi before whom
the Writ is pending.
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Complainant Shri Raj Singh Kadian submitted that the action of the
DIG as alleged in his complaint before us in maligning him personally in the
file noting, a copy of which he has sought, amounts also to an allegation of
corruption. With regard to delay in response, however, Shri Raj Singh Kadian
submitted that he had withdrawn his original application of 29-11-06 after
discussion with the DIG Shri S.S. Chatrath and only submitted the same to
the DG, BSF in June 2007. The initial response, therefore, is within time.
From the above it is clear that Shri Raj Singh Kadian is being
proceeded against under the law what he is pleading for his justice, which he
has every right to do, but if the action being taken against him is within the
framework of the law, even if this is alleged to be unjust that allegation cannot
amount to allegation of human right violation. There has been an allegation of
corruption at the level of complaint before us, but no such allegation was
made in the initial application, which is the application at issue in this
complaint.Shri Raj Singh Kadian had already moved the High Court of Delhi
through Writ, which is at present under consideration. Any alleged injustice
done to him will be remedied there. However, we cannot find any allegation of
human rights violation in the case before us that will warrant our interference.
This appeal is therefore, dismissed.
Announced in the hearing. Notice of this decision be given free of cost
to the parties.
(Wajahat Habibullah)
Chief Information Commissioner
7-8-2009
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 K.P. Shreyaskar)
Joint Registrar
7-8-2009
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