December 27, 2006
The Government Officer interpreted during second appeal at CIC said that under Section 8(1)(h) of the RTI Act the exemption from disclosure could only be claimed by CPIO only if any criminal investigation is pending and not under departmental proceedings. But deciding on the present case, the CIC upheld the decision of the Authority not to give information under RTI Act claiming exemption under Section 8 (1) (h) considering the fact that the appellant is a government servant, the term â€œinvestigationâ€ in Section 8(1)(h) has to be interpreted in terms of the Vigilance Manual.
The contention of the appellant in his appeals, rejoinders to the comments of the CPIO and during the hearing was:
The decisions of CPIOs are totally non-speaking and unreasoned. The provisions of Section 8(1)(h) of the RTI Act have been wrongly applied by them without any elaboration or justification. This Section can be applied only if furnishing of information would impede the process of investigation or apprehension or prosecution of offenders. A careful analysis of this Section would reveal that exemption from disclosure could be claimed only if any criminal investigation is pending. As far as the appellant is concerned, the CBI has already closed the case stating that no allegations could be proved against him and as such there is no criminal investigation is pending against him. Since no investigation is pending against the appellant, the question of â€œapprehensionâ€ or â€œprosecutionâ€ does not arise.
The term â€œinvestigationâ€ has not been defined in the RTI Act and therefore the definition given in Section 2 ( h) of the Code of Criminal Procedure, 1973 has to be adopted . As per that Section â€œinvestigationâ€ includes all proceedings under the Code for collection of evidence by a police officer and in terms of Thus, from this decision, it is apparent that this Commission has not viewed the term â€˜investigationâ€™ as used in Section 8(1)(h) to apply exclusively to criminal investigation as propounded by the appellant in the present case. Therefore, the contention of the appellant that only when criminal investigation is pending, the provisions of Section 8(1)(j) could be applied, has to fail. Section 2(n) of the said Code, offense means any act or omission made punishable by any law for the time being in force. Therefore, investigation means criminal investigation and since in the present case since the CBI has closed the case, the question of any criminal investigation pending against the appellant does not arise to apply the provision of Section 8(1)(h). A Departmental enquiry can not be considered to be an investigation in terms of Section 8(1)(h) of the RTI Act as this Section has not used the term â€œinvestigationâ€ simplicitor. It has to be read with the following terms â€œProsecution â€œapprehensionâ€ or â€œprosecution of offendersâ€.
If it is done so, it will be apparent that the term â€˜investigationâ€™ used in Section 8(1)(h) refers only to criminal investigation and does not cover fact finding in house enquiries. Since there is no pending investigation against the appellant, the question of appellant being offender who has to be apprehended or prosecuted does not arise. Investigation being a well known legal term, falls squarely within the confines of criminal investigation and in the absence of any other definition provided in the RTI Act, it has to be so construed in applying the provisions of Section 8(1)(h). In service jurisprudence, there is nothing like an investigation even during the disciplinary proceedings. Further, in view of the dismissal of SLP, there is a specific bar on the Department to initiate any proceedings against the appellant contrary to the final report of the CBI. Thus, not only there is any criminal investigation pending against the appellant, the Department cannot also initiate any disciplinary proceeding. Therefore, the contention of the CPIOs that pending disciplinary proceeding, being a matter of investigation, the information could not be disclosed, cannot be sustained. Instead of passing a speaking order and without giving any details of any investigations pending against the appellant, the CPIOs or AAs could not have come to the conclusion that furnishing of the documents sought for by the appellant would affect investigation. Considering the object of the RTI Act that there should be transparency in the discharge of functions of public authorities and that every citizen should have the right to access the information under the control of public authorities, the Commission should direct the CPIOs to provide the documents sought for by the appellant.
The stand of the CPIOs and AAs in their respective orders and the comments and during the hearing is:
According to the CPIO/AA, FCI, since the subject matter is under the examination with the CVC/Ministry and DOP&T, it assumes the status of investigation and therefore covered under Section 8(1)(h) of the RTI Act. In the comments to the appeal, the CPIO, FCI has stated that since the appellant has sought for correspondence etc. with other agencies, the same could not be furnished without the consent of these agencies as required under Section 11 of RTI Act. According to the Department, while serving as Sr. Regional Manager, FCI, the appellant was allegedly involved in a number of corrupt practices and irregularities and accordingly investigations were initiated by the Vigilance Cell of the Department. As on date, there are three disciplinary cases pending against the appellant besides matters pending in CAT, Chandigarh and Punjab & Haryana High Court. The findings of CBI have not found favour with the Department and investigation to the financial loss on account of irregularities committed by the appellant are pending.
The term â€˜investigationâ€™ used in Section 8(1)(h) of the RTI Act cannot be interpreted in the manner in which the appellant has tried to interpret. While interpreting any term, the concept of â€˜purpose and objectâ€™ or the â€˜reason and spirit; should be kept in mind. The textual interpretation should match the contextual. Section 5 of Cr. PC clearly specifies that specific provisions spell out in other Act would override the provisions of Cr. PC in identical matters.
Since admittedly the impugned matter is related to investigations under the Departmental proceedings as set out in the relevant Act, rules and procedures governing members of an All India Service, the definition given in Cr. PC cannot be applied in the present case. The contention of the appellant that with the withdrawal of the SLP and the consequent dismissal of the SLP by the Supreme Court bars further departmental action is not sustainable. As per the rules and legal provisions, once CBI enquiry is over and if the Department differs with the report of the CBI, further action is required to be taken as per para 3.16 of the CVC Manual. The CVC, to which the matter was referred, has advised for initiating disciplinary proceedings and therefore the Department of Personal, being the cadre controlling authority, would initiate appropriate action, if so decided. The High Court order dated 29.7.2005 only bars the department from conducting parallel investigation with the CBI and since CBI has already submitted its report, there is no bar in proceeding with the Departmental action and on so mentioning before the Supreme Court, the SLP was allowed to be withdrawn.
Therefore, it is absolutely wrong on the part of the appellant to contend that no criminal and/or disciplinary case is pending gainst him.
The CPIOs and AAs have declined to furnish the information applying the provisions of Section 8(1)(h) of the Act which reads:
According to the appellant, relying on Cr.PC, the term â€œinvestigationâ€ would mean criminal investigation which may result in apprehension or prosecution of offenders and since the CBI has given a clean chit to the appellant, no criminal investigation is pending and departmental proceedings cannot be considered to be investigation to deny documents sought for by him applying the provisions of Section 8(1)(h) of the Act.
It is true that the term â€œinvestigationâ€ has not been defined in the RTI Act. When a statute does not define a term, it is permissible to adopt the definition given in some other statute. If different definitions are given in different statutes for a particular term, then the one which could be more relevantly adoptable should be adopted taking into account the object and purpose of the Statute in which the definition is not available. It is not necessary to confine oneself to only one definition as propounded by the appellant.
In the present case, the appellant is a government official and is therefore, bound by the service Rules, which inter alia include the provisions in the Vigilance Manual. As a matter of fact, he got a stay from the CAT only on the basis of the provisions in the Vigilance Manual challenging that in terms of the Manual, departmental investigation cannot go on simultaneously with CBI investigation. His stand before the CAT was that even issue of show cause notice amounted to investigation, while in the present appeals, his stand is that investigation means criminal investigation.
One cannot interpret the provisions of a statute according to his own convenience. Be that as it may, as far as the present case is concerned, considering the fact that the appellant is a government servant, the term â€œinvestigationâ€ in Section 8(1)(h) has to be interpreted in terms of the Vigilance Manual.
I am extracting certain portions of Chapter 4 of the Manual, (2005 Edition) from which it could be seen that the terms â€œinvestigationâ€ and â€œenquiryâ€ have been used analogously, to indicate that investigation need not necessarily mean criminal investigation.
From the above extract, it can be seen that the term â€œinvestigationâ€ in respect of government officials could mean both investigation by the CBI, which could be termed as criminal investigation as well as investigation by the Department.
Therefore, I do not find any force in the contention of the appellant that â€œinvestigationâ€ means only criminal investigation. In this connection, I may refer to the Division Bench decision of this Commission in Shri Gobind Jha Vs Army Hqrs. (CIC/80/2006/ 00039 dated 1.6.2006).
In that case, the appellant sought for various information including a copy of the report of investigation carried out on the basis of his complaint. The CPIO and AA declined to furnish a copy of the report applying the provisions of Section 8(1)(h) of the Act. Examining the provisions of Section 8(1)(h) of the Act, the Division Bench observed -
Thus, from this decision, it is apparent that this Commission has not viewed the term â€˜investigationâ€™ as used in Section 8(1)(h) to apply exclusively to criminal investigation as propounded by the appellant in the present case.
Therefore, the contention of the appellant that only when criminal investigation is pending, the provisions of Section 8(1)(j) could be applied, has to fail.
The second limb of the contention of the appellant is that the Department is incompetent to initiate disciplinary proceeding after withdrawal of the SLP. As far as this contention is concerned, I would like to make it abundantly clear that it is not only beyond the scope of the proceedings before the Commission to examine whether the Department is competent to take disciplinary action or not but it is also beyond its jurisdiction. Therefore, when the Department has stated that three disciplinary proceedings are pending against the appellant, my examination will be restricted only to decide whether, the information sought by the appellant could be denied on the ground that investigation is pending. According to the Department, on the basis of the advice of the CVC, the matter is pending with the Department of Personnel. Any disciplinary process till such time a charge sheet is issued or the case is closed, has to be treated as a matter under enquiry/investigation, to be covered under Section 8(1)(h). In Shri D.L.Chandhok Vs. Central Wharehousing Corporation (Appeal No.121/ICPP/ 2006 dated 9.10.06), this Commission has held that -
In the present case, it is evident from the applications of the appellant themselves that he has sought copies of various documents connected with disciplinary/other proceedings against him. Therefore, I am of the view that the CPIOs and AAs have correctly applied the provisions of Section 8(1)(h) to decline to provide copies of the documents sought for by the appellant.
Before parting with the decision, I may also point out that the stand of the CPIO, FCI in his comments that the provisions of Section 11 are attracted in furnishing correspondence with other agencies is not correct. Section 11 would be attracted only when information relating to a third parry is sought for disclosure and not when the correspondence relates to the applicant himself.
In view of my finding that the CPIOs have correctly applied the provisions of Section 8(1)(h) of the Act in declining to furnish copies of the documents sought for by the appellant, the appeals stand dismissed.
The case was decided by Mrs. Padma Balasubramanian, Information Commissioner on 27th December 2006.
AN ATTEMPT to make MPs' allowances and expenses exempt from the Freedom of Information Act has been halted.
Former Tory Minister David Maclean claimed his Private Members Bill (which he withdrew today (Friday, 27 April)) was aimed at protecting MPs private correspondence with and about constituents.
But opponents said that was nonsense and the Penrith and the Border MP wanted to stop publication of embarrassing details about their expenses and allowances.
Cambridgeshire MPs David Howarth, Andrew Lansley and Malcolm Moss all made clear their opposition to the move, as did Suffolk West's Richard Spring.
Cambridge City Liberal Democrat MP David Howarth said: "I am opposed to this proposal. Freedom of Information should apply to all public bodies and obviously that should include Parliament."
Liberal Democrat MP Norman Lamb - who angered colleagues by using the FoI Act to obtain and publish the details of MPs travel expenses earlier this year, told the News: "It is nonsense to say it is about protecting MPs correspondence with constituents or government departments."
Cambridgeshire North-East Tory MP Malcolm Moss said: "I don't quite understand what Mr Maclean is trying to do. Correspondence with and about constituents is protected by other legislation."
Mr Spring said: "I am relaxed about publication of MPs' expenses."
CEN News : Region-wide : MPs want FoI