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Decision No. CIC/SG/A/2009/000813/3558
Appeal No. CIC/SG/A/2009/000813
Relevant Facts
emerging from the Appeal:
Appellant : Mr. Kishan Lal Bansal
9361, Gaushala Marg, Kishan Ganj,
Delhi-110006.
Respondent : Mr. G.P.Singh
Addl. Distt. Magistrate & PIO
Govt. of N.C.T. of Delhi
Office of the Dy. Commissioner (Central)
14, Darya Ganj,
New Delhi-110002.
RTI application filed on : 18/08/2008
PIO replied : 15/09/2008
First appeal filed on : 27/09/2008
First Appellate Authority order : 02/01/2009
Second Appeal filed on : 04/04/2009
Information sought:
The Appellant sought information about Order no. DC/C/2007/2374-2375 dated 31/10/07
passed by Sh. Ramesh Tiwari, the then DC (Central) regarding fixing of responsibility on the
officials responsible for misplacing the sealing file of M/s. Punit Wire Industries, which was
sealed on 05.01.2001 in prop. No. 9361, Gaushala Marg, Kishan Ganj, Delhi-06:
S.No. Information sought PIO's reply
1. Whether the sealing file of M/s. Punit Wire Sincere efforts have been
Industries has been traced by the office of made to trace the file of M/s
SDM/Karol Bagh in terms of the order passed by Puneet Wire Industries but
DC(Central) on 31/10/2007? the file is not traceable of
now.
2. If the sealing file of M/s. Punit Wire Industries is
The enquiry was conducted
still missing, then what action has been taken by the then SDM(Karol
against the officials responsible for missing of Bagh). Sh. R.K.Agarwal, the
the record file in terms of the order no. dealing Assistant of the file
DC/C/2007/2374-2375 dated 31.10.2007 passed was found responsible for
by DC (Central)? missing the file. Since Sh.
a) Who is responsible for missing of the R.K.Agarwal has been
sealing file of M/s. Punit Wire Industries?
transferred from this office to
b) If no responsibility has been fixed afterDte. of Education, the
having the order dated 31.10.07 passed byenquiry report/file is being
DC(Central) for fixing the responsibility,
forwarded to the said Deptt.
then state the reason?
3. Please provide the copy of inquiry report of The copy of enquiry report
SDM/Karol Bagh who was directed to submit the dt. 07/01/2008 had already
inquiry report by first week of December, 2007? been provided.
4. Whether the complaint has been lodged to the a) No
Police-Station Darya Ganj for missing of the b) Not applicable.
record file of M/s. Punit Wire Industries by the
office of SDM/Karol Bagh?
a) If yes, then supply the date and dairy
number of the complaint made to Police
Station.
b) If no, why?
Grounds for First Appeal:
• Enquiry report dated 07/01/2008 provided is illegible
• Set out a practical regime of right to information for the citizen
Order of First Appellate Authority:
The FAA relied on the judgment of the CIC in Appeal no. 122/CPB/2006 (Mrs. Kamlesh Lal v.
National Thermal Power Corporation) where in it was held that when a complaint is made by a
citizen is enquired into, he/she is entitled to know the results of the enquiry. Accordingly, it was
ordered in that case that copies of the enquiry report, if action has been completed on them, be
given to the appellant. In this case action has not yet been completed on the preliminary report.
Moreover, it is evident that the result of the preliminary inquiry has already been initiated to the
appellant. The FAA also quoted from the CIC’s order in File NO. CIC/80/A/2006/00039 dated
01/06/2006 (Govind Jha v. Army HQ)-
9. While in criminal law, an investigation can be said to be completed
with the filing of the charge sheet in an appropriate court by an investigating
agency, in cases of vigilance related enquiries, misconduct and disciplinary
matters, the investigation can be said to be over only when the competent
authority makes a determination about the culpability or otherwise of the
person or persons investigated against. In that sense, the word investigation
used in Section 8(1)(h) of the Act should be construed rather broadly and should
include all enquiries, verification of records, assessments and so on which
may be ordered in specific cases. In all such matters, the enquiry or the
investigation should be taken as completed only after the competent
authority makes a prima-facie determination about presence or absence of guilt
on receipt of the investigation/enquiry report, from the investigation/enquiry
officer.
10. There is another aspect to this matter. If for the sake of argument, it is
agreed that the report of investigation in any matter can be disclosed
immediately after the officer investigating the cases concludes his investigation
and prepares the report which, let us assume, impeaches the conduct of a
given officer. In case the competent disciplinary authority agrees with the
findings of the investigating officer, disclosure of the report even before a
final decision by the competent authority, would be inconsequential. There shall
be problem, however, if the disciplinary/appointing authority chooses to
disagree with the findings of the investigating officer. Early disclosure of the
investigation report in such a case, besides being against the norms of equity,
would have caused irretrievable injury to the officer/person’s (who would have
been the subject of investigation) standing and reputation. His demoralisation
would be thorough.
11. In exempting from disclosure matters pertaining to an on-going
investigation (Section 8 (1) (h) ), the RTI Act besides other reasons, also caters to
the possible impact of the disclosure of such information on the public servants’
morale and their self-esteem. There are, thus, weighty reasons for such a
provision in the exemption clauses of the RTI Act.
12. We are keenly aware that one of the purposes of the enactment of the RTI Act
is to combat corruption by improving transparency in administration. This
objective should be achieved without impairing the interest of the honest
employee. Premature disclosure of investigation-related information has the
potentiality to tar the employee’s reputation, permanently, which cannot be
undone even by his eventual exoneration. The balance of advantage thus, lies in
exempting investigations/enquiries in vigilance, misconduct or disciplinary
cases, etc. from disclosure requirements under the Act, till a decision in a
given case is reached by the competent authority. This also conforms to the letter
and the spirit of Section 8 (1) (h) of the RTI Act.
13. There is one other factor that also needs some reflection. Disclosure
of an investigation/enquiry report (as demanded in this case by the
appellant) even before its acceptance/rejection by a given competent authority
will expose that authority to competing pressures which may hamper cool
reflection on the report and compromise objectivity of decision-making.
14. In our considered view, therefore, in investigations in vigilance related
cases by CVOs or by departmental officers, as well as in all cases of misconduct,
misdemeanour, etc., there should be an assumption of continuing investigation
till, based on the findings of the report, a decision about the presence of a
prima-facie case, is reached by a competent authority. This will, thus, bar
any premature disclosure, including disclosure of the report prepared by the
investigating officer, as in this case.
The FAA after considering Section 8(1)(h) and (j) concluded that confidential inquiry reports are
not to be furnished to the appellant in response to a RTI application till such time that a decision
is reached by the competent authority. The legible attested copy of the preliminary enquiry report
dated 07/01/2008 need not be furnished to the Appellant since aforesaid stage has not been
reached.
Further with regard to the second query of the Appellant, the FAA ordered that the Appellant
was not seeking information but requesting for a direction to a public authority by the appellate
authority to take a certain course of action. The request of the appellant was not covered under
the definition of information under the RTI Act and hence cannot be allowed.
Grounds for Second Appeal:
• Copy of enquiry report requested has not been supplied- FAA stepped into the shoes of the
PIO to deny disclosure of report.
• Unsatisfactory reply to Query 4 (b)
Relevant Facts emerging during Hearing on 3 June 2009:
The following were present
Appellant : Mr. Kishan Lal Bansal
Respondent : Mr. Satnam Singh, ADM & PIO
The PIO will state whether any police FIR has been lodged in pursuance of the complaint of the
appellant. If no police complaint has been filed the reasons if any on records has to be provided.
The Appellant stated with regard to his Query No. 4 the PIO should have informed him whether
the complaint had been filed with the Police. If no complaint had been and there were any
reasons were on record, these should have been communicated. If no reasons are on record for
not filing the Police complaint this should be stated by the PIO.
Decision announced on 4 June 2009
The PIO has relied on two orders of the CIC to support his position that the enquiry report cannot
be disclosed. The Commission finds the position taken by the PIO to be rather hypocritical as he
had himself provided a copy of the said enquiry report, albeit an illegible version, to the
Appellant. The position of law relied on by the PIO (as well as the FAA in its order) is no longer
the correct position. In his decision in Bhagat Singh v. Chief Information Commissioner WP(C)
No. 3114/2007 decided on 03/12/2007, Justice Ravindra Bhat of the High Court of Delhi held –
“Under Section 8, exemption from releasing information is granted if it would
impede the process of investigation or the prosecution of the offenders. It is
apparent that the mere existence of an investigation process cannot be a ground
for refusal of the information; the authority withholding information must show
satisfactory reasons as to why the release of such information would hamper the
investigation process. Such reasons should be germane, and the opinion of the
process being hampered should be reasonable and based on some material. Sans
this consideration, Section 8(1)(h) and other such provisions would become the
haven for dodging demands for information.”
The Commission finds that no satisfactory reasons have been provided by the PIO for not
disclosing the enquiry report. No reasoning has been given by the Appellate Authority as to how
Section 8(1) (j) applies. The Commission takes a very dim view of PIOs or Appellate Authorities
quoting provisions of Section 8(1) without giving any reasons as to how they apply. When any
public authority denies a fundamental right of a citizen the minimum requirement is that the
relevant provision of Section 8(1) should be given with some explanation about how it is
applicable.
Decision:
The Appeal is allowed.
The PIO will provide the information to the Appellant free of cost before 15 June 2009.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act
Shailesh Gandhi
Information Commissioner
4 June 2009
(In any correspondence on this decision, mention the complete decision number.) (AK)