CENTRAL INFORMATION COMMISSION
.....
F.Nos.CIC/AT/A/2010/000047
Dated, the 23rd March, 2010.
Appellant : Shri K.S. Jain
Respondents : Directorate General of Vigilance (Customs & Central
Excise)
Matter was heard through videoconferencing (VC) on 08.03.2010.
Appellant was present in person at NIC VC facility at Bangalore, while
the respondents ― represented by the CPIO, Shri S. Chandrasekaran,
Deputy Commissioner (Vigilance) ― were present at NIC VC facility at
Chennai. Commission conducted the hearing from its New Delhi office.
2. Through his RTI-application dated 18.07.2009, appellant made the
following queries:-
“Our Unit II, JDEL No.55/1 Cuddalore Main Road, Kattukuppam,
Manapet Post, Pondicherry 607 402 records were seized by
preventive group of erstwhile Trichy Commissionerate and
thereafter these were forwarded to Pondicherry
Commissionerate when Commissionerate was formed.
(1) We would like to have Xerox copies of internal
correspondence, records and other note sheets generating for
this case from the date the case came in the hands of vigilance,
Central Excise, Chennai. This should include correspondence
exchanged with Commissioner, Pondicherry, Board and also
explanations received from the accused.
(2) Present status of the case.
(3) Action taken report on the referred to CVO/CBEC by CVC."
3. In his reply dated 12.08.2009, citing orders of the CIC, the CPIO
stated that as regards appellant’s sub-queries at Sl.a, b and d (after
splitting item 1 into 4 sub-items), information could not be disclosed as
vigilance investigation in the case was “yet to attain finality”.
4. As regards sub-item ‘c’ (of item 1), appellant was informed that
no correspondence was made by that office with the Central Board of
Excise and Customs in relation to the ongoing investigation.
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5. Regarding item at Sl.No.2, appellant was again informed that
since the matter was under investigation, there was no finality about
the role of any officer.
6. As regards item at Sl.No.3, CPIO declined to disclose the
information on the ground that the investigation report furnished by
this unit to the Director General of Vigilance, New Delhi was “pending
finalization” and hence could not be disclosed under Section 8(1)(h).
7. Appellate Authority (AA), in his order dated 06.10.2009, noted
that CPIO had denied the requested information to the appellant under
Section 8(1)(h) of the RTI Act. However, as the CPIO had not clearly
stated in his communication as to how the disclosure of the requested
information would ‘impede’ any ongoing investigative process, AA,
therefore, directed the CPIO to re-examine the matter for a decision at
his level.
8. Following Appellate Authority’s order, CPIO re-examined the
matter and through his communication dated 12.10.2009 informed
appellant that the type of information which he had requested, if
disclosed, have had the potentiality to jeopardize the entire
investigation process by exposing the investigating officers to competing
pressures and through intrusive action of those who were being
investigated. He also informed appellant that any disclosure of the
contents of the criminal enquiry at this stage would not only be
premature, but could bring out into the open the sources from which
information was collected which would expose those sources to entirely
avoidable risks. He held that disclosure of internal correspondences,
explanations received from the accused persons, action taken reports,
etc. relating to an ongoing investigation especially when this
investigation is of a vigilance nature, could irretrievably disturb the
proceedings. This, according to the CPIO, was enough reason to
conclude that the disclosure of the requested information would impede
the ongoing investigation and hence would attract Section 8(1)(h) of the
RTI Act.
9. Appellant carried this matter in first-appeal before the Appellate
Authority (AA) once again and received the AA’s decision dated
19.11.2009. Appellate Authority took due cognizance of the appellant’s
submission that no tax-evasion investigation against the unit mentioned
by him in his RTI-application was pending and hence it could not be
construed that an investigation in this matter was current. Against this,
Appellate Authority examined the decision of the CPIO that while no
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‘revenue investigation’ against the unit was pending, a ‘vigilance
investigation’ on the basis of certain complaints against officers
involved was certainly current ― “the vigilance investigation is yet to
attain finality”. On the basis of his examination of the respective
submissions, Appellate Authority concluded that disclosure of the
requested information came under the bar of Section 8(1)(h) as it had
had the potentiality to impede the ongoing vigilance investigation. He
cited several decisions of the CIC in support of his conclusion.
10. In his second-appeal, appellant stated that as regards his unit-II,
no case was pending anywhere. He, therefore, demanded that the
information ought to be disclosed.
Decision:
11. I have noted the respective submissions of both sides. It is
admitted by the respondents that no ‘revenue investigation’ was
pending against the above-mentioned Unit-II of the appellant, but a
related ‘vigilance investigation’ was definitely current. Appellant, in
his RTI-application, has himself mentioned that he wanted to have all
records relating to this case “from the date the case came in the hands
of Vigilance, Central Excise Chennai”. He, therefore, also wanted the
“explanations received from the accused”. It is, thus, obvious that
although technically speaking, the ‘revenue investigation’ against the
unit has been closed, the ‘vigilance enquiries’ against the officers in the
same matter are still going on. It would be well-nigh impossible to
separate the two.
12. From what the appellant submitted ― although he kept repeating
that there was no pending investigation against his Unit ― it was quite
clear that he was wanting to seek-out the records of vigilance enquiry
against the officers. These two investigations ― one, now closed,
against Unit-II of appellant; and the other, now current, against officers
― were distinct and separate.
13. CPIO and the Appellate Authority have rightly pointed out that no
disclosure of information could be authorized when a vigilance
investigation against employees of the public authority was current
because it was sure to impede the current process by exposing the
sources of information, the methodology of investigation, the identities
of the investigating officers, among others, and also by exposing the
officers to external pressures and intrusive action by those investigated.
Delhi High Court, in its decision dated 10.11.2006 in S.P. Singh Vs. UOI
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& Ors; W.P. (C) No.16712/2006, held that in matters of prosecution,
any disclosure outside the extant process would amount to impeding the
process. What applies to prosecution, equally applies to investigation,
as these two processes are governed by common exemption condition
under Section 8(1)(h) of the RTI Act. Disclosure of information about
investigations, especially vigilance investigations, under the RTI Act is
sure to impede that process.
14. It also needs to be stated that vigilance-related investigations are
generally conducted in confidentiality and the files related thereto are
treated as impliedly confidential under Section 124 of the Indian
Evidence Act by the public authority. This brings the matter also within
the scope of Section 11(1) of RTI Act due to the fact that the public
authority itself becomes a third-party (as defined under Section 2(n))
with reference to confidential information it holds. No disclosure of
such information can be authorized unless it is proved that public
interest in its disclosure outstrips the protected interest. No public
interest commends disclosure of this information as now requested.
15. In view of the above, I uphold the decision of the Appellate
Authority in denying this information to the appellant.
16. Matter disposed of with these directions.
17. Copy of this direction be sent to the parties.
( A.N. TIWARI )
INFORMATION COMMISSIONER
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