CENTRAL INFORMATION COMMISSION

CENTRAL INFORMATION COMMISSION ….. F.No.CIC/AT/A/2007/00223 F.No.CIC/AT/A/2007/00231

F.No.CIC/AT/A/2007/00225 F.No.CIC/AT/A/2007/00314

F.No.CIC/AT/A/2007/00230 F.No.CIC/AT/A/2007/00315

6 Appeals Dated, the 24th December, 2007. Third-party Appellants

: Shri N.C. Joshi, Commissioner of Income Tax (Vig) (OSD), O/o the DGIT (Vig), Dyal Singh Public Library Building, 1 Deen Dayal Upadhyaya Marg, New Delhi-110 002. Ms. R. Bhama, Additional Director of Income Tax (Vig), O/o the DGIT (Vig), Dyal Singh Public Library Building, 1 Deen Dayal Upadhyaya Marg, New Delhi-110 002. Ms.Shumana Sen, Deputy Director of Income Tax (Vig), O/o the DGIT (Vig), Dyal Singh Public Library Building, 1 Deen Dayal Upadhyaya Marg, New Delhi-110 002. Shri R.K. Gupta, Addl. Director of Income Tax (Vig), O/o the DGIT (Vig), Dyal Singh Public Library Building, 1 Deen Dayal Upadhyaya Marg, New Delhi-110 002. Ms.Sunita Kaila, Director General of Income Tax (Vig), O/o the DGIT (Vig), Dyal Singh Public Library Building, 1 Deen Dayal Upadhyaya Marg, New Delhi-110 002. Shri P.K. Mishra, the then Director General of Income Tax (Vig), O/o the DGIT (Vig), Dyal Singh Public Library Building, 1 Deen Dayal Upadhyaya Marg, New Delhi-110 002.

Public Authority

: Ms.Amrita Misra, Deputy Secretary (V&L) & CPIO, Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, North Block, New Delhi-110 001. Shri A.K. Sinha, Commissioner of Income Tax (C&S) & Appellate Authority, Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, North Block, New Delhi-110 001.

ApplicantRespondent

Shri S.K. Srivastava, Addl. Commissioner of Income Tax, CRD 11/9, Pandara Park, New Delhi-110 002.

These are 6 appeals filed by Shri N.C. Joshi, Ms. R. Bhama, Ms.Shumana Sen, Shri R.K. Gupta, Ms.Sunita Kaila and Shri P.K. Mishra against the order dated 29.12.2006 of the Appellate Authority (AA), Shri A.K. Sinha, Commissioner of Income Tax (C&S), Central Board of Direct Taxes (CBDT).

Brief facts: 2. Shri S.K. Srivastava (Applicant-respondent) had filed an RTI-application dated 24.11.2006 before the CPIO, CBDT, Ms.Amrita Misra, Deputy Secretary (V&L), with the following request:“I will, therefore, request you to very kindly allow me to inspect the records, files, other materials as maintained by and available with the DGIT(Vigilance) and CVO Sri P.K. Mishra and his subordinate officers and offices pertaining to me i.e. S.K.Srivastava, IRS 87052 or various proceedings launched by these officers against me under the due and applicable provisions of RTI Act 2005 and take copies or extracts where ever considered necessary and required by me.” 3. The CPIO, vide her letter dated 4.12.2006, denied disclosure of the above information to the applicant (Shri Srivastava). The applicant then preferred a first-appeal before the AA, Shri Sinha, who, in his order dated 29.12.2006, directed the CPIO, office of the Director General of Income Tax (Vigilance) (the public authority which maintains the custody of the information requested) as follows:“I find no reason for withholding the information from the appellant under any provision of the RTI Act 2005, particularly information the disclosure of which will not jeopardize any process of investigation against him. I understand that a charge-sheet has already been issued to the appellant. The requirement of natural justice in the disciplinary proceedings against him alone entitle him access to all records pertaining thereto. Therefore, the appellant has to be allowed full access to all records as requested by him vide his application dated 24.11.2006 and take extracts / copies as may be considered necessary by him.” 4. Subsequently, six officers of the Directorate General of Income Tax (Vigilance), viz. Shri N.C. Joshi, Ms. R. Bhama, Ms.Shumana Sen, Shri R.K. Gupta, Ms.Sunita Kaila and Shri P.K. Mishra, have filed 6 separate appeals (viz. Appeal Nos. CIC/AT/A/2007/00223, 00225, 00230, 00231, 00314 and 00315) before the Commission, claiming themselves the benefit of Section 2(n) and Section 19(3) of the RTI Act, which reads as follows:Section 2(n): “"third party" means a person other than the citizen making a request for information and includes a public authority” Section 19(3): “A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission”

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5. The Commission admitted these appeals and fixed hearings on 9.5.2007 in case No.CIC/AT/A/2007/00223; 10.5.2007 in case Nos.225, 230 and 231; and 6.6.2007 in case No.314. In case No.223, on the request of one of the third-party-appellants, Shri N.K. Joshi, the hearing was postponed to 15.6.2007. The other five cases were clubbed with this case for hearing on 15.6.2007. Accordingly, the hearing was held on 15.6.2007, when the third-party-appellants Shri N.C. Joshi, Smt.R.Bhama and Shri R.K. Gupta, along with their Counsel, Shri S.K. Dubey were present. The public authority (CBDT) was represented by the AA, Shri A.K. Sinha, while the applicant-respondent, Shri S.K. Srivastava was also present. A Division Bench comprising Shri A.N.Tiwari and Prof. M.M. Ansari heard the submissions of the parties. While instructing the applicant-respondent, Shri Srivastava to file his written submission before the Commission, the Bench directed that the matter would be heard again on 3.8.2007. 6. Accordingly, parties were called for hearing on 3.8.2007, which was again postponed to 21.9.2007 on the request of the applicant-respondent’s advocate that the CWP moved by the applicant-respondent in Delhi High Court was also listed for 3.8.2007. 7. The Division Bench held the hearing on 21.9.2007, when the CPIO of CBDT as well as the applicant-respondent was present. After hearing the submissions of the parties, the case was again adjourned to 28.12.2007 on the request of the applicantrespondent, Shri Srivastava, while at the same time directing the CBDT to take a decision on Shri Srivastava’s request for information under the Rules of Disciplinary Proceedings. The Commission also directed that a copy of that decision should be filed before it at the next hearing. 8. In the meanwhile, the advocate of the applicant-respondent filed before the Commission an order dated 31.10.2007 of Hon’ble Delhi High Court in the applicantrespondent’s CWP filed before the latter, which directed the Commission to dispose of the appeals concerning the applicant-respondent within 8 weeks from the date of the Order. 9. In compliance with the High Court’s directive, the Commission fixed a hearing on 14.12.2007 in all the six appeals concerning Shri Srivastava as against the earlier hearing fixed for 28.12.2007. 10. Parties were accordingly called for a hearing on 14.12.2007. The third-partyappellants were represented by their Counsel, Shri S.K. Dubey while the applicantrespondent was present along with his Counsel, Shri H.P. Singh. The public authority (CBDT) was not represented at the hearing. The Division Bench heard the submissions of the parties. 11.

Upon hearing the parties, the following issues were identified:(i)

the admissibility of the appeals filed by the third-party-appellants, including the locus-standi of the third-parties (DGIT (Vigilance)) in this case. Page 3 of 7

(ii)

the validity of the third-party-appellants’ contention that certain information requested by the applicant-respondent (Shri Srivastava) should not be disclosed to him, and that the order of the CPIO, CBDT dated 4.12.2006 declining to disclose the information under Section 8(1)(j) was valid, and in that sense, the first AA’s decision dated 29.12.2006 was not sustainable.

Item (i): 12. As regards the admissibility of the present appeals before the Commission, the applicant-respondent submitted that the definition of third-party in Section 2(n) of the RTI Act read with Section 11(1) did not and could not include the present third-partyappellants. Elucidating this further, he stated that third-party-appellants in this case (DGIT(Vigilance)) were not involved in the deliberations at the levels of the CPIO and the AA. They have surfaced all of a sudden before the Central Information Commission. These third-party-appellants were actually the officers of the Vigilance Department of the public authority, viz. DGIT(Vigilance). In that capacity, they have been contributing to the processing of vigilance case against the applicant-respondent. He cited a decision of the Commission, in which it was stated that government servants involved in decision-making process did not become third-parties, should that matter come up for decision under the RTI Act. 13. The Counsel for the third-party-appellants contested the applicant-respondent’s submission and stated that Section 2(n) of the RTI Act defining “third-party” unmistakably covered the third-party-appellants in this case in so far as these were persons, other than the citizen, making the request, and the public authority to which the request for information was made. On the point of fact he stated that these were the officers who were contributing notes to a file which was admittedly classified as ‘Secret’ being a vigilance-related file. In that sense, not only these officers were related to the case, they had a legitimate concern that their contributions to the file given under a pre-existing arrangement of secrecy, should not be allowed to become public, or at least, should not be made public without their consent. He pointed out that matters of vigilance were extremely sensitive and could arouse strong emotions. Disclosure of any information about ‘which officer wrote what’ regarding the eventual decision that was made in a given case, could expose such officers to serious and avoidable danger and pressures, mental as well as physical. He, therefore, stated that the Commission had very rightly held in its order dated 14.07.2006 in the case K.C. Aggarwal Vs. Ministry of Home Affairs; Appeal No. CIC/AT/A/2006/00148 that file-notings in case of Secret and Confidential files should not be disclosed, or at least should not be disclosed without the concurrence of those who recorded their notes. Reading out the Preamble to the RTI Act, the Counsel for the third-party-appellants submitted that the Preamble sets out a ‘practical’ RTI-regime in which decisions cannot be made based upon theoretical assumptions alone. Practical aspects of each case, its impact on persons involved as well as on governance will have to be carefully studied before authorizing disclosure of information. He argued that file-notings in the present case, if disclosed, will not only severely impair the public authority’s capacity to pursue to its logical conclusion a vigilance / disciplinary enquiry, but also have wide-ranging impact on general governance. Page 4 of 7

Decision: 14. Upon hearing the parties, the Commission is persuaded that the third-partyappellants herein (Shri N.C. Joshi, Ms. R. Bhama, Ms.Shumana Sen, Shri R.K. Gupta, Ms.Sunita Kaila and Shri P.K. Mishra) all officers of the DGIT(Vigilance) as officers contributing to decision-making in a secret file are covered under the definition of third-party under Section 2(n) read with Section 11(1) of the RTI Act. The Commission, therefore, holds that the third-party-appellants herein are fully eligible to ventilate their concerns before the Commission for appropriate orders. Item (ii): 15. The Commission noticed that the RTI-request of the appellant dated 24.11.2006 is couched in general and broad language about the files and documents sought to be disclosed. The request reads as reproduced at para 2 above. 16. The Commission understands the difficulty of the applicant-respondent in not being able to pointedly ask for the files and documents as he had had no access to the information related to those files and documents. He had, therefore, indicatively stated the range of files and documents required by him. 17. It is for the public authority to identify the documents answering the description contained in the RTI-application of the appellant. 18. The Commission had contemplated asking the Appellate Authority to give a list of documents it wished to disclose to the applicant-respondent for him (applicantrespondent) to examine whether that exhausted the range of his request. The applicantrespondent urged that this process could prolong the matter. 19. In consideration of the submissions made, in the judgement of the Commission, a balance of convenience approach should be best adopted in this case. In consideration, it is directed that the CPIO, CBDT (the public authority), will first make a determination about the documents, files, and records corresponding to the RTI-request of the applicant-respondent which can be disclosed to him because they don’t attract any of the exemption Section under the RTI Act. For the undisclosed portion of the information, it is directed that the CPIO may apply Section 10(1) of the RTI Act to sever the undisclosable information from that to be disclosed to the applicant-respondent. The reason for withholding the undisclosed information may be provided to the applicant-respondent, Shri Srivastava. 20. The Appellate Authority while determining the issue did not have before it the submissions of the third-party-appellants and, as such, it did not have the occasion to consider the arguments and submissions made by them. Since the Appellate Authority did not have all the necessary parties before it, the order of the Appellate Authority, therefore, suffers from the vice of “non-rejoinder of essential parties” and on that account alone the order has to be held to be un-sustainable. However, the issue has now been remanded back to the CPIO and, should the applicant be dissatisfied with the decision of the CPIO, it shall be open to the applicant to prefer an appeal before the First Appellate Page 5 of 7

Authority. Likewise, it shall also be open to the third-party-appellants to make their submissions before the CPIO as well as before the First Appellate Authority, if the matter is again carried in First Appeal. 21.

The appeals are disposed of with these directions.

Sd/(M.M. ANSARI ) INFORMATION COMMISSIONER

Sd/(A.N. TIWARI) INFORMATION COMMISSIONER

Authenticated by – Sd/( D.C. SINGH ) Under Secretary & Asst. Registrar Address of parties: 1.

Shri N.C. Joshi, Commissioner of Income Tax (Vig) (OSD), O/o the DGIT (Vig), Dyal Singh Public Library Building, 1 Deen Dayal Upadhyaya Marg, New Delhi-110 002.

2.

Ms. R. Bhama, Additional Director of Income Tax (Vig), O/o the DGIT (Vig), Dyal Singh Public Library Building, 1 Deen Dayal Upadhyaya Marg, New Delhi-110 002.

3.

Ms.Shumana Sen, Deputy Director of Income Tax (Vig), O/o the DGIT (Vig), Dyal Singh Public Library Building, 1 Deen Dayal Upadhyaya Marg, New Delhi-110 002.

4.

Shri R.K. Gupta, Addl. Director of Income Tax (Vig), O/o the DGIT (Vig), Dyal Singh Public Library Building, 1 Deen Dayal Upadhyaya Marg, New Delhi-110 002.

5.

Ms.Sunita Kaila, Director General of Income Tax (Vig), O/o the DGIT (Vig), Dyal Singh Public Library Building, 1 Deen Dayal Upadhyaya Marg, New Delhi-110 002.

6.

Shri P.K. Mishra, the then Director General of Income Tax (Vig), O/o the DGIT (Vig), Dyal Singh Public Library Building, 1 Deen Dayal Upadhyaya Marg, New Delhi-110 002.

7

Ms.Amrita Misra, Deputy Secretary (V&L) & CPIO, Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, North Block, New Delhi-110 001. Page 6 of 7

8.

Shri A.K. Sinha, Commissioner of Income Tax (C&S) & Appellate Authority, Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, North Block, New Delhi-110 001.

9.

Shri S.K. Srivastava, Addl. Commissioner of Income Tax, CRD 11/9, Pandara Park, New Delhi-110 002.

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