Central Information Commission
CIC/AD/C/2009/001502
Dated January 20, 2010
Name of the Applicant : Shri Dinesh Kumar Sen
Name of the Public Authority : Western Railway, Mumbai
Background
1. The applicant filed an RTI application dt.12.7.09 with the Sr.PIO & DGM(G), WR,
Mumbai seeking copies of all the notings and correspondence pages of the vigilance
file No.E/161/2004/05/078/D/ 3/N pertaining to the vigilance case against him. The
Dy.CVO & PIO replied on 5.6.09 denying the information as per section 8(1)(h) of RTI
Act as the case was still under DAR proceedings.(Copy not in file) Not satisfied with
the reply, the applicant filed an appeal dt.12.8.09 with the Appellate Authority
reiterating his request for the information. Shri R.S.Chugh, Appellate Authority replied
on 16.9.09 upholding the decision of the PIO. Being aggrieved with the reply, the
applicant filed a second appeal with the Commission.
2. The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the hearing
for January 20, 2010.
3. Shri G.D.Joshi, Sr.Vig. Officer represented the Public Authority.
4. Efforts were made to contact the appellant over the phone but contact could not be
established. However, the applicant arrived later and was able to present his case
before the Commission.
Decision
5. The Commission received a rejoinder dt.19.1.10 from Shri Mahavir Singh, PIO
(Vigilance) in which he stated that Shri D.K.Sen, appellant who was working as
Radiographer at Ratlam Divisional hospital, Western Railway was trapped by
Western Railway Vigilance team for demanding and accepting Rs.1500/- as
illegal gratification from the proprietor of the firm. He was subsequently suspended
and major penalty DAR action was initiated against him as per DAR rules by the
competent authority. The applicant vide his RTI application has sought copies of all
the notings and correspondence pages of vigilance file related to this case. Shri
Mahavir Singh stated the following in support of his denial of information:
……..” investigations, checks and trap cases done by the vigilance and its working
is very sensitive and confidentiality of the document has to be maintained. These
include statement of various employees and outside persons, documents collected
during the investigation, correspondences and decision taken by various
authorities, their views, investigation report of Vigilance Inspector which also
includes name of the Inspector investigating the case etc. In short the vigilance
file contains various confidential information and statements given by various
persons in anticipation of confidentiality/secrecy to be maintained by the vigilance
branch. If after investigation any DAR action is to be taken then all documents
related to the case are forwarded to the Disciplinary Authority for initiating the
DAR action, who takes the decision on the basis of material available with him. If
the content and copy of vigilance file is made available through RTI, the
information about trap cases and vigilance checks, methodology adopted,
information about complainant, name of officials involved in the check, who
assisted with the vigilance etc. will become public and they will unnecessarily be
harassed for assisting the Vigilance in curbing the corruption. If their names are
made public, the genuine complainants will hesitate to come forward who may
otherwise wish to complain and give information, in anticipation of their
confidentiality being maintained. The disclosure of such information, may
endanger the safety of persons involved in the traps, checks and identify the
source of information or assistance given in confidence for curbing the corruption.
Hence such information are exempted u/s 8(1)(g) of the RTI Act. The information,
may also be used by the culprits to influence the decision making authority, the
disciplinary authority and other officials which may impede the prosecution of
offenders hence was denied u/s 8(1)(h) in the subject case. The vigilance files
have many information and record or part thereof which has been supplied by the
third party in anticipation of treating them as confidential because if the name of
complainant and nature of complaint made by him is made public then his
business relation with Railway may get affected and he may be subjected to
discrimination by not only by the officials against whom he made the complaint or
gave statement but also other officials who may treat him as informer or
complainant to vigilance. They will hesitate to complain and hesitate to assist
vigilance in curbing the corruption. Hence confidentiality should be maintained
and it should not be given without consent of party. The Respondent explained
that the information being sought from the vigilance file relates to the trap case
against the Appellant. The relevant material required for DAR proceedings has
been supplied to the DA and the DA has made his opinion on the available record
with him and all the copies of documents on the basis of which DAR proceedings
initiated has also been supplied to the CO. So the applicant’s contention that the
copy of Vigilance file required to defend his case, according to the Respondent, is
not acceptable.
6. The Respondent further added that the investigation was over and NIP was issued and
the Appellant has been compulsorily retired from service. Moreover, the time period
for filing an appeal with the competent authority has also expired and the Appellant
has not opted for any appeal . He also added that the Appellant has recently filed a
case in CAT, Ahmedabad.
7. The Commission, however, in an attempt to get deeper insight into the matter
requested for further explanation from the Respondents for not disclosing information
under Sections 8(1)(h) and 8(1)(g) of the RTI Act while deciding that another hearing
in this connection would be held to come to a decision. Accordingly, a notice was
sent to both parties on 25.1.2010 informing them about the decision to hear them
through video conferencing on 28.1.1010 at 10.30a.m. .
8. Shri Mahaveer Singh, PIO(Vig.) & Shri D.K.Chaudhary, Dy.CVO (Stores) representing
the Public Authority and the applicant were present at NIC-Mumbai.
Decision
9. The Commission, in response to the notice sent on 25.1.2010 received a letter dated
27.1.10 from Shri Mahaveer Singh, PIO, Vigilance explaining the position of the
Vigilance section. Excerpts from the letter are reproduced below:
i) Vigilance file contains very sensitive and confidential information
about persons associated in the check, planning, layout and methodology of
executing the plan etc. It will lead to disclosure of secrecy and
confidentiality of methodology and planning of decoy checks to general
public. All these sensitive information if disclosed will endanger the physical
safety of the persons involved in decoy checks. It will discourage officials to
work effectively against corrupt officials. Hence it should be exempted from
disclosure u/s 8(1)(g).
ii) If the content and copy of Vigilance file is made available through RTI,
details about officials and person involved in the case will be disclosed. They
will unnecessarily be harassed and subjected to discrimination by officials
against whom they have given information or statements . The action of
officials involved in investigation and assistance is given in anticipation of
confidentiality/secrecy to be maintained by the Vigilance branch. Hence such
information is denied u/s 8(1)(g).
iii) As mentioned in RTI preamble:
‘AND WHEREAS democracy requires an informed citizenry and
transparency of information which are vital to its functioning and also to
contain corruption and to hold Governments and their instrumentalities
accountable to the governed’.
Vigilance department work against corrupt practices in Railway and official
involved in such practices. Every information which directly or indirectly
supports the corrupt officials and discourage the people who work for curbing
the corruption should be denied straightaway. Vigilance file and information
about persons involved in vigilance checks, complainants, witnesses etc.
exactly fall under this category. However, the end result of vigilance
check/cases may be made available to public to assess its outcome whenever
required but minute detail of file and checks should not be disclosed.
vi) Para 10(1) states that ‘…access may be provided to that part of the
record which does not contain any information which is exempt from
disclosure under this Act and which can reasonably be severed from any part
that contains exempt information’. This clause can not be exercised in
vigilance investigation case because:
a) Whole investigation is interlinking of allegations in complaint,
statements, facts and refers to various person or firm, witnesses etc. Hence
to search and sever all such information from such interlinked documents is
practically impossible.
b) However, if it may be attempted to sever name, designation of person
involved etc. but it will not serve any purpose. There are many ingredients
left after severing name, designation, firm name etc. such as nature of
complaint, language and content in the complaints, content of statement,
designation of official investigating the case and have given their remark and
their handwriting, date of document and hierarchy of dealing a file etc. All
these information can be used to identify the source and persons involved
and who have handled such confidential investigation. Hence the severability
clause is not effective.
vii) This is a case where DAR proceeding initiated after vigilance
departmental Test Check (Decoy). All information and documents related to
DAR case have already been supplied to DA while initiating the DAR
proceedings. Same was also supplied to CO(applicant in this case). Whole
DAR case, enquiry etc. are based on these Relied Upon Documents. There is
no logic or public interest served by disclosing the document which are not
part of or relied during any action against the Charged Officer. Other few
documents which were not considered have already been supplied to the
Appellant in other RTI application.
10. The Commission, on careful consideration of the submission by the Respondents on
record and after hearing them noted that this particular case is one of ‘trapping’ an
individual while accepting bribe and that a number of decoys have been used to
ensure success of the operation and that the any disclosure of information related to
the decoys who were involved and the methodology that the Vigilance Section uses
while ‘trapping’ is sensitive and confidential information. The Commission also noted
from the contents of para 9 vi given hearinabove that using the severability clause
in such cases is not practical or effective as names, designations, activities, remarks
are all interlinked and identifying parts exempt from disclosure is impossible. The
Commission also noted that the Appellant has filed a case in the CAT and that the case
is ongoing and that all documents in relation to his DA&R case have already been
furnished to him except the vigilance files and that the same are not required for
defending his case in the CAT (para 9 vii). In the light of these observations the
Commission denies the information to the Appellant under Sections 8(1)(g) of the RTI
Act and accordingly rejects the appeal.
(Annapurna Dixit)
Information Commissioner
Authenticated true copy:
(G.Subramanian)
Deputy Registrar
Cc:
1. Shri Dinesh Kumar Sen
H.No.202
Prince Plaza
Chhatripul
Ratlam
2. Shri Mahavir Singh
The PIO (vigilance) &
Dy.CVO(E)
Western Railway
Headquarter Office
Churchgate
Mumbai 20
3. The Appellate Authority
Western Railway
Headquarter Office
Churchgate
Mumbai 20
4. Officer incharge, NIC
5. Press E Group, CIC