{"id":170418,"date":"2009-09-14T00:00:00","date_gmt":"2009-09-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sh-balendra-kumar-vs-ministry-of-external-affairs-on-14-september-2009"},"modified":"2018-09-16T20:57:49","modified_gmt":"2018-09-16T15:27:49","slug":"sh-balendra-kumar-vs-ministry-of-external-affairs-on-14-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sh-balendra-kumar-vs-ministry-of-external-affairs-on-14-september-2009","title":{"rendered":"Sh. Balendra Kumar vs Ministry Of External Affairs on 14 September, 2009"},"content":{"rendered":"
Central Information Commission<\/div>\n
Sh. Balendra Kumar vs Ministry Of External Affairs on 14 September, 2009<\/div>\n
              Central Information Commission\n\n\n                                                         CIC\/AD\/A\/X\/2009\/000121\n\n\n                                                               Dated August 17, 2009\n                                                                     August 28, 2009\n\n\n                                                      Pronounced on: Sep 14, 2009\n\n\n\nName of the Appellant             :      Sh. Balendra Kumar\n\nName of the Public Authority      :       Ministry of External Affairs\n\n\n\n                    Adjunct to order dated 18.05.09\n\n\n\n1.    In the captioned matter, upon considering detailed submissions from both the\n      parties, the Commission by its order dated 18.05.2009 directed as hereunder:\n\n\n         \"........After hearing both sides and on perusal of all documents provided in\n         support of their arguments, the Commission takes this opportunity to\n         highlight the fact that the \"RTI Act is an Act to provide for setting out\n         the practical regime of Right to Information for citizens to secure\n         access to information under the control of Public Authorities, in order\n         to provide transparency and accountability in the working of every\n         Public Authority\". The Commission holds that while 'Transparency' promotes\n         accountability and provides information for citizens about what the Public\n         Authority is doing, including efficient spending of Public money and making all\n         decisions in the open and on record, 'Accountability' is the key requirement\n         for good governance, with public interest as one of its major principles. In the\n         light of this argument, the Commission holds that there is no merit in the\n         CPIO's denial of information as 'personal information' while invoking Section\n         8(1)(j) of the RTI-Act, since the public interest in this case far outweighs any\n         harm done to protected interests. The Commission, accordingly, directs the\n         CPIO to provide all the information sought in the RTI request to the Appellant\n         by 15 June, 2009 under intimation to the Commission.....\"\n\n\n2.    Subsequently, the Commission received a letter dated 15.06.2009 from the CPIO,\n      MEA seeking review of the order in view of objections raised by the \"Third Party\"\n      (Ambassador Ms. Chitra Narayan) in question, against disclosure of information\n      pertaining to her. Accordingly, the MEA sought review of the matter, invoking the\n      provisions of Section 11 of the RTI Act 2005.\n 3.   Hence the Bench of Mrs. Annapurna Dixit, Information Commissioner scheduled\n     another hearing on 17.08.2009 and the parties including the Ambassador, were\n     intimated accordingly vide CIC's notice dated 29.07.2009.\n\n\n4.   Sh. Debraj Pradhan, CPIO, Ms. Parvati Sen Vyas, Appellate Authority\/Secy. (ER)\n     and N. Ram Prasad, US [Vig.] represented the Public Authority.\n\n\n5.   Sh. Brijesh Kumar, the authorized representative on behalf of the Applicant, was\n     present during the hearing.\n\n\n6.   During the hearing on 17.08.2009, the representatives of the Respondent Public<\/pre>\n
     Authority i.e. MEA made oral submissions and also submitted a communication
\n     dated 10.08.2009 from the concerned “Third Party” expressing her objections to
\n     the disclosure of the information as sought by the Appellant, seeking protection of
\n     her privacy under Section 11 of the RTI Act 2005. The Respondent Public
\n     Authority also submitted another communication dated 10.08.2009 informing the
\n     CIC that the concerned “Third Party” was presently posted as an Ambassador and
\n     hence   expressed    her   inability   to   attend    the   hearing   while   sending   her
\n     comments\/views on the case as per directions of the CIC. It was further pointed
\n     out by the Respondent Public Authority that the concerned “Third Party” will be in
\n     Delhi the following week and accordingly sought another hearing at the
\n     Commission. In view of the sensitivity of the information sought and the gravity
\n     of the allegations involved including misappropriation of public money by a Public
\n     office and the objections of the “Third Party” to the disclosure of the information,
\n     it became imperative that the Ambassador be heard. Accordingly, the Commission
\n     rescheduled another hearing of the appeal on 28.08.2009 so as to allow the
\n     Ambassador to appear and submit her objections. In the light of the facts and
\n     circumstances of the case      and     of the contention of the Respondent that the
\n     Enquiry report prepared by the CVO, MEA has sensitive information and also
\n     information that is “personal”, the Commission further directed the Respondent
\n     to produce the Enquiry Report and relevant documents, as sought by the
\n     Appellant, in a sealed cover on 25.08.2009, for inspection of the same by the
\n     Commissioner in order to ascertain the exact nature of the information existing in
\n     the file and to decide as to whether the information was actually “sensitive” and
\n     more specifically “personal information” with respect to the Ambassador.
\n     Intimation for production of the file for inspection before the Commission was
\n     duly conveyed to the concerned parties by CIC notice dated 18.08.2009.\n<\/p>\n
7.   The     CVO   file   containing      the    Enquiry     Report    and    other    relevant
\n     documents\/communication was brought in a sealed cover to the office of the
\n       Commissioner by Mr. N Ram Prasad US(Vig)         on 25.08.2009, inspected by the
\n      Commissioner and returned to the representative of MEA.\n<\/p>\n
8.    Sh. Debraj Pradhan, CPIO, Ms. Parvati Sen Vyas, Appellate Authority\/Secy. (ER)
\n      and N. Ram Prasad, US [Vig.] represented the Public Authority at the hearing
\n      scheduled for 28.8.09. Ms. Chitra Narayanan, the Ambassador, earlier posted at
\n      Ankara, Turkey, i.e. the “Third Party,” as contended by the Public Authority was
\n      also present during the hearing.\n<\/p>\n
9.    Sh.   Brijesh   Kumar   and   Sh.   Jitendra   Kumar    Sharma,    the   authorized
\n      representatives on behalf of the Applicant were present during the hearing.\n<\/p>\n
DECISION<\/p>\n
10.   The Ambassador present during the hearing was heard while she also produced
\n      few documents before the Commission clarifying the various charges against her
\n      and the outcome of the investigation.\n<\/p>\n
11.   During the hearing, the representative for the MEA contended that the
\n      information sought related to a case which had been closed after completion of
\n      enquiry, the disclosure of information with respect whereof would indicate lack of
\n      confidence in the investigations conducted by the MEA & the CVC.          The CIC,
\n      however, is unable to consider the “lack of confidence” aspect, while deciding
\n      whether information in this case shall be treated as exempt, since such argument
\n      does not fall within the purview of the RTI Act 2005. Moreover, it is a known fact
\n      that neither the RTI Act 2005 nor any other law in force in India states that
\n      information pertaining to a closed case cannot be disclosed. It may be noted in
\n      this connection that information pertaining to even cases which are sub judice are
\n      available in the public domain on the various websites of the Courts. Hence this
\n      argument of the Respondent is found untenable.\n<\/p>\n
12.   As already indicated earlier, the Commissioner inspected the CVO file containing
\n      the Enquiry report in respect of the allegations made against the Ambassador. The
\n      documents which the Ambassador submitted during the hearing were found to be
\n      a part of the inspected CVO file. In fact, the inspection of the Enquiry Report and
\n      file notings from the file of the CVO, MEA had revealed that each of the allegations
\n      of misappropriation of Government money by the Ambassador had been dealt
\n      with by the CVO. As per the documents placed on record in the file, specifically
\n      the enquiry report ( file notings ) including the noting   dated 09.08.07 and the
\n      MEA’s letter dated 15.6.09 addressed to the CIC, most of the allegations had been
\n       found to be baseless (the clarification in respect of the remaining were invited
\n      from the Ambassador by the CVO and responses were immediately furnished by
\n      the Ambassador and her Office) and hence with the approval of the Foreign
\n      Secretary and in view of the       categorical report from the CVO, MEA the CVC
\n      concurred in not pursuing further investigation in the matter. The documents in
\n      the file also state that the inadvertent misrepresentation of facts based on
\n      unverified conclusions by the supervisory official (as admitted by the concerned
\n      official in his communication dated 11.06.2007) had led to overpayment of
\n      allowances to the extent of US $ 4603\/- [Rs. 1,88,401\/-], which have since been
\n      recovered and deposited in the Embassy account on 25.06.2007. (Documents
\n      elaborating the above mentioned points have already been submitted on record
\n      and appear in the Commission’s Order dated 18.5.09).               The detailed Enquiry
\n      Report summarized the investigation while concluding that the allegations of
\n      misuse of Government money, fraud and corruption had been found to be
\n      baseless. According to the Enquiry Report, there were administrative procedural
\n      lapses, which had not led to loss of Government money; nevertheless, the same
\n      had been noted by the concerned officials for rectification and future compliance.
\n      The MEA’s submissions further revealed that the Ministry was in the process of
\n      further streamlining various accounting processes in order to eliminate recurrence
\n      of such inadvertent lapses and procedural lapses. (All the points mentioned in the
\n      para hereinabove, while being part of the Enquiry Report, were also part of the
\n      oral submissions of the Respondent Public Authority during the three hearings
\n      held).\n<\/p>\n
13.   The CVO file was once again perused by the Commission for a second time on
\n      28.08.09 and returned on 02.09.09 [Since the Commission wanted to peruse the
\n      CVO file for an hour or so, the representative appearing for CVO suggested to
\n      keep the file in the custody of the Commission]. The contents of the CVO file
\n      inspected by the Commission clearly indicate that the information therein are not
\n      by   any   stretch   of   imagination   “personal   information”    pertaining   to   the
\n      Ambassador. The allegations cast as well as the inquiry\/investigation conducted
\n      were related to the Ambassador in her “official capacity” and dealt with alleged
\n      complaints about misappropriation of Government money. The transactions with
\n      respect to Government money is anyway liable for a Government Audit, which has
\n      been noted even during the investigation by various officials, so there can be no
\n      confidentiality and\/or secrecy in divulging such information since the expenditure
\n      of Government money by a Government official in the official capacity as office
\n      expenses cannot be termed\/categorized as “personal information”. In this regard
\n      it is pertinent to note that even the President of the country does not enjoy any
\n       such immunity from disclosure of information which relates to and\/or involves any
\n      action by his\/her office in the exercise of regular official functions.\n<\/p>\n
14.   The Respondent while arguing as to why the information sought should not be
\n      disclosed stated that failure of the Appellant to substantiate the “public interest”
\n      involved in such disclosure of information, despite directions of the CIC, as also
\n      the furtive conduct of the Appellant, fuelled the belief of the Respondent that the
\n      real intent behind seeking the information was merely an attempt to malign the
\n      reputation and jeopardize the career of a senior official by casting aspersions on
\n      the Country’s Representative. It was further submitted by the Ministry that the
\n      information relating to vigilance cases are treated as “classified” and that “the
\n      disclosure of such classified information could adversely impact the morale of the
\n      members of the Ministry”. The Respondent expressed his apprehension that the
\n      distortion and\/or improper reporting of the order declaring such disclosure of
\n      information, by the media, in order to make the same sensational, may damage
\n      the image and reputation of such a senior official as well as the Ministry. Hence
\n      the Ministry sought exemption from disclosure of the information categorizing the
\n      said information as “personal information”. In the light of these submissions of
\n      the Ministry, the Commission notes that the contents of the CVO’s report do not
\n      divulge any information in the nature or character of personal information related
\n      exclusively to the personal life of the Ambassador. Contrary to the argument of
\n      the Respondent, the Commission is of the considered opinion that in the instant
\n      case the disclosure of information relating to alleged charges of corruption and
\n      misappropriation     of    Government      money,      wherein     after   a   detailed
\n      investigation\/inquiry, the name and reputation of the Public official concerned,
\n      had been declared unblemished, is actually crucial in strengthening the public
\n      faith in the functioning of the Ministry and the CVC. Since the allegation and\/or
\n      complaint, Vigilance Enquiry and the Enquiry reports were in respect of the
\n      Ambassador in her official capacity and related to her office and acts\/omissions
\n      therein and also because all the information sought by the Appellant exists in
\n      official records already, hence the information cannot be classified as personal nor
\n      exemption be sought on that ground. In so far as distortion of the CIC’s order in
\n      the hands of media is concerned, the same is best left to the wisdom of the
\n      scribes since it is a known fact that in view of the Constitutional right to freedom
\n      of expression discussed in many a celebrated case, no legal restraint can be
\n      extended on the freedom of press. It is only the sense of social and moral
\n      responsibility of the media which can at best be expected from such a vital
\n      component of democracy.\n<\/p>\n
 15.   The   Respondent     also    expressed       strong   objection   and    doubts    about       the
\n      bonafide\/identity as also modus operandi of the Appellant in the instant case. It
\n      was contended by the Respondent that the information is sought by the Appellant
\n      merely with the intent of harassing the Ambassador by attempting to malign and
\n      tarnish her reputation for vested and malicious interests. In this connection, the
\n      Commission observes that it is a settled position of law that all citizens of India
\n      are entitled to obtain information which exists in official records and is not directly
\n      and specifically exempt under provisions of the RTI Act 2005. It can                           be
\n      interpreted as to mean that it is immaterial who is requesting for the information
\n      and information will be provided to any citizen of India as long as it remains
\n      outside the ambit of the exemptions under Section 8(1) and 9. The provisions of
\n      the Section 6 (2) of the RTI Act 2005 further state that the Applicant seeking
\n      information shall not be required to furnish any reason for seeking the
\n      information. Thus, as per the provisions of law, the bona fide, intent, modus and
\n      conduct of the Appellant cannot be challenged atleast before the CIC as long as
\n      the appropriate procedure of law has been adopted by the Appellant, as in this
\n      case, in seeking the information.\n<\/p>\n
16.   It is important to remember again at this stage that the CVO’s Enquiry report was
\n      sought by the Appellant and that disclosure of the same was denied by the MEA.
\n      In this connection, the Commission would like to quote two judgments of Central
\n      Information Commission to highlight the Commission’s position                   with regard to
\n      disclosure of Reports :\n<\/p>\n
             The       Commission      in    its    decision    dated     30.12.2006         in     case
\n             CIC\/WB\/A\/2006\/01033, had held that information about FIR\/Closure
\n             Report\/ Report furnished to Department by CBI in a particular case, to be
\n             furnished by the CBI to the Appellant, using the Severance Clause, if
\n             required.\n<\/p><\/blockquote>\n
             In    a    more      recent    decision    dated    06.08.2009      in     Appeal       No.
\n             CIC\/WB\/A\/2008\/00060             the    Commission      has       held    that        “….the
\n             investigation on which information has been sought involved a
\n             decidedly public activity. In this case what is sought is only a copy of
\n             the disciplinary authority’s recommendations to CVC and a copy of CVC’s
\n             advice meaning that not even proceedings for any offence alleged to have
\n             been committed, the disposal of such proceedings or indeed a copy of the
\n             original enquiry report has been called for. Clearly this is not a case where
\n             disclosure will amount to invasion of privacy….”\n<\/p><\/blockquote>\n
 17.   It is evident that the Central Information Commission has even directed the CVC
\n      and CBI in appropriate cases to furnish information pertaining to enquiry report\/s,
\n      investigation reports etc. In the light of the foregoing facts and circumstances and
\n      the decisions discussed hereinabove, it is accordingly observed that none of the
\n      arguments of the Respondent fall within the provisions of the Section 8 and\/or 9
\n      of the RTI Act 2005 whereby the information may be considered to be exempt
\n      from disclosure. No specific ground except a rather weak contention about
\n      information being sensitive and of personal nature has been addressed. However,
\n      as discussed already hereinabove, the information sought does not qualify for
\n      exemption either as being “sensitive” or as being “personal” by any chance.\n<\/p>\n
18.   The Appellant on his part submitted that the invoking of the objection under
\n      Section 11 of the RTI Act 2005 and seeking that the “Third Party” be heard, by
\n      the Public Authority after a considered decision of the CIC was an afterthought
\n      and clearly illegal. He further contended that the CPIO’s order denying information
\n      on the ground that the “concerned Division of the Ministry has denied the
\n      information” was also illegal since as per the law, the CPIO is the only officer
\n      empowered to decide on the disclosure of information, with no provision of
\n      delegating the authority.     In this connection, the necessity of allowing the
\n      Ambassador to appear before the Commission and make her submissions has
\n      already been discussed in the foregoing paragraph and needs no further
\n      elaboration at this stage. In so far as the illegality in the order passed by the CPIO
\n      is concerned, the moment the Appellant had filed Appeals, the said order has
\n      already been challenged and hence merits no separate deliberation. The Appellant
\n      also argued during the hearing that the information sought by him relates to
\n      misappropriation of Government money which is nothing but public money and
\n      being a member of the public, he has every right to acquire information about the
\n      same.\n<\/p>\n
19.   On perusal of the records and after hearing the contentions of all the parties, the
\n      Commission decides that the information as sought in the Application cannot be
\n      classified as personal information because the information exists in official records
\n      and is about the public exchequer as also a public office which represents the
\n      country. The argument of the Respondent Public Authority that no public interest
\n      angle could be substantiated by the Appellant had also been heard. However, in
\n      this connection it is important to remember that the public interest has to be
\n      established in case the information sought otherwise merits non disclosure, falling
\n      within one of the exempted categories and not vice versa. It has amply been
\n      discussed in the foregoing paragraphs that since the information sought relates to
\n      allegations of misappropriation of government money, public money being at
\n        stake, the information cannot be considered as personal information and hence
\n       the information does not fall under provisions of Section 8(1) (j) of the RTI Act
\n       2005. Accordingly, the Commission directs that the information as sought by the
\n       Appellant be provided by 5 October 2009, while using the severance clause 10(1)
\n       of the RTI Act , if required,   to severe parts exempted from   disclosure in the
\n       enquiry report,   under intimation to the Commission.\n<\/p>\n
20.    The appeal is accordingly disposed of.\n<\/p>\n
Decision in the matter was reserved and pronounced in open Court on 14
\nSeptember 2009.\n<\/p>\n
                                                                       (Annapurna Dixit)
\n                                                               Information Commissioner
\nAuthenticated true copy:\n<\/p>\n
(G. Subramanian)
\nAssistant Registrar
\n Cc:\n<\/p>\n
1.    Mr. Balendra Kumar
\n      Advocate
\n      V-Chhilora, P Abdullapur
\n      Meerut
\n      UP<\/p>\n
2.    Mr. Debraj Pradahan-, Jt. Secretary & CPIO(RTI)
\n      Ministry of External Affairs
\n      South Block
\n      New Delhi<\/p>\n
3.    Mrs. Parbati Sen Vyas
\n      Secretary (ER) & Appellate Authority(RTI)
\n      Ministry of External Affairs
\n      South Block
\n      New Delhi<\/p>\n
4.    Ms. Chitra Narayan
\n      Indian Ambassdor to Berne
\n      Ministry of External Affairs
\n      South Block
\n      New Delhi<\/p>\n
5.    Officer in charge, NIC<\/p>\n
6.    Press E Group, CIC\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Central Information Commission Sh. Balendra Kumar vs Ministry Of External Affairs on 14 September, 2009 Central Information Commission CIC\/AD\/A\/X\/2009\/000121 Dated August 17, 2009 August 28, 2009 Pronounced on: Sep 14, 2009 Name of the Appellant : Sh. Balendra Kumar Name of the Public Authority : Ministry of External Affairs Adjunct to order dated 18.05.09 1. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[39,1],"tags":[],"class_list":["post-170418","post","type-post","status-publish","format-standard","hentry","category-central-information-commission","category-judgements"],"yoast_head":"\nSh. 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