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2013 DIGILAW 943 (CAL)

C. H. Ramakrishna Rao v. Lt. Commander & CPIO

2013-12-20

DIPANKAR DATTA

body2013
Judgment : Dipankar Datta, J. 1. Invoking the provision of the Right to Information Act, 2005 (hereafter the Act), the petitioner applied on 17th May, 2012 under Section 6 thereof before the Lt. Commander, Naval Ship Repair Yard, being the Public Information Officer (hereafter the PIO) seeking information. The information that he sought were relatable to the service of one Ajit Kumar, a welder employed in the Ship Repair Yard, and read as under: “1. Certified copy of appointment letter of Shri R Ajit Kumar, SK (welder) (Now FM), token No. 339 and direct recruitment letter of said person as FM (welder) CIN-217. 2. Assessment Card Report-2000 to 2005 of Shri R Ajit Kumar, SK (welder) T.No 339. 3. Caste Certificate of Shri R Ajit Kumar during his selection of ND (M) apprenticeship in welder trade as local candidate and his caste certificate during selection as FM (welder) in reserve OBC candidate. 4. As per service record his place of birth and SSLC copy as in S/book. 5. Tenure of ND (M) apprenticeship as per service record. 6. As per service record whether he intimate his purchasing of car No. AN 01 F 0920 under CCS conducts Rule 1964 Section 18 (i) C & source of money. 7. Action taken report of said R Ajit Kumar, SK (Welder) who brutally beaten to D Tulsidas, HS (Fitting) during working hours at bay no. 2 of NSRY work shop and enquiry was conducted by Lt. Cdr (now Cdr) P Benerjee. “ 2. The PIO responded by his letter dated 12th June, 2012. While refusing information on the ground of bar created by Section 8(1)(e),(g) and (j) of the Act, it was observed that disclosure of information sought for by the petitioner would serve no public purpose. It was also alleged that the petitioner has been attempting to create misunderstanding and disharmony between various sections of staff of the organisation, and was advised to refrain from such activities in future. 3. The order rejecting the Section 6 application was carried in appeal by the petitioner under Section 19(1) of the Act before the first appellate authority i.e. Rear Admiral, Headquarter, Andaman & Nicobar Command, Port Blair. By an order dated 6th August, 2012, the appeal was disposed of furnishing partial information to the petitioner. 3. The order rejecting the Section 6 application was carried in appeal by the petitioner under Section 19(1) of the Act before the first appellate authority i.e. Rear Admiral, Headquarter, Andaman & Nicobar Command, Port Blair. By an order dated 6th August, 2012, the appeal was disposed of furnishing partial information to the petitioner. Relevant extracts from the order of the first appellate authority read as follows: RTIQuery Sl.No. Information (i) The information is exempted from disclosure under Sec 8(1)(j) of RTI Act, 2005 as disclosures of this information will amount to unwarranted invasion of privacy of Shri R Ajit Kumar, Foreman (Welder) of NSRY (PB). (ii) -do- (iii) -do- (iv) Place of birth of Shri R Ajit Kumar, Foreman (Welder) of NSRY (PB) is Buniyadabad, Port Blair, S. Andaman. However copy of SSC cannot be provided as is exempted under Sec 8(1)(j) of RTI Act 2005 as the same is personal to the third party and dissemination of which will amount to unwarranted invasion of privacy of Shri R Ajit Kumar, Foreman(Welder) of NSRY (PB). (v) Tenure of ND (M) apprenticeship of Shri. R Ajit Kumar, Foreman (Welder) of NSRY (PB) is two year from 06 Apr 92 to 05 Apr 94. (vi) Shri R Ajit Kumar, Foreman (Welder) of NSRY (PB) vide his letter dated 25 Aug 11 had intimated his purchasing car No. AN01 F 0920. However the source money was not declared in there. (vii) The information is exempted from disclosure under Sec 8 (i) (j) of RTI Act 2005 as disclosures of this information will amount to unwarranted invasion of privacy of Shir R Ajit Kumar, Foreman (Welder) of NSRY (PB) 4. Feeling aggrieved by the partial rejection of the appeal, the petitioner approached the Central Information Commission (hereafter the Commission) with an appeal under Section 19(3) of the Act. One of the grounds taken in support of the appeal by the petitioner was that the said Ajit Kumar had submitted fake certificate at the time of obtaining public employment and his appointment was wrong. 5. One of the grounds taken in support of the appeal by the petitioner was that the said Ajit Kumar had submitted fake certificate at the time of obtaining public employment and his appointment was wrong. 5. The Deputy Registrar of the Commission by a notice dated 13th December, 2012 conveyed to the PIO, the first appellate authority as well as the petitioner that the latter’s appeal would be listed for hearing on 27th December, 2012 at 15:20 hours and that they may appear in person at the venue of hearing indicated therein to present their respective cases. 6. By a letter dated 22nd December, 2012, the petitioner conveyed to the said Deputy Register his inability to attend the hearing at New Delhi from Port Blair. According to him, the distance was an impediment. He also conveyed that he would be leaving for his native place in Andhra Pradesh for treatment on 29th December, 2012 and return to Port Blair by 14th February, 2013. He furnished the number of his mobile phone and urged that if it is necessary to have a video conference, the same may be allowed after 14th February, 2013. Such letter was dispatched by the petitioner by speed post on 22nd December, 2013 itself. 7. The Central Information Commissioner (hereafter the CIC) considered the second appeal of the petitioner on 27th December, 2012 and proceeded to pass the following order: “Heard today dated 27.12.2012. The parties have not appeared before the Commission. However, Lt. Cdr. Sheik Kabir has spoken to me on telephone. 2. It is noticed that vide RTI application dated 17.5.2012, the appellant had sought personal information regarding R. Ajit Kumar (welder), viz, copy of his appointment letter; copy of his assessment card report and copy of his caste certificate etc. Vide letter dated 12.6.2012, the CPIO had refused to disclose this information u/s 8 (1) (e) (g) & (j) of the RTI Act. The AA had also taken the same view in his order dated 6.8.2012. 3. During the hearing, Lt. Cdr. Kabir submits that the appellant is seeking personal information regarding R. Ajit Kumar without establishing any larger public interest and this is being done just to cause harassment to him (Ajit Kumar). 4. Suffice to say that personal information can be disclosed only in the larger public interest. The appellant has not established any such interest. Cdr. Kabir submits that the appellant is seeking personal information regarding R. Ajit Kumar without establishing any larger public interest and this is being done just to cause harassment to him (Ajit Kumar). 4. Suffice to say that personal information can be disclosed only in the larger public interest. The appellant has not established any such interest. In the premises, I do not find any infirmity in the decisions of the CPIO and AA. The appeal is, therefore dismissed.” 8. By presenting this writ petition, the petitioner seeks interference of this Court in the second appellate order dated 27th December, 2012 as well as the orders dated 12th June, 2012 and 6th August, 2012, which have merged therein. 9. At the hearing before me, the petitioner and the PIO (the first respondent) were represented. None appeared for the CIC (the second respondent) despite service. 10. The order of the CIC shocked my conscience and as such I did not call upon the petitioner’s learned advocate to argue; instead Mrs. Biswas, learned advocate for the first respondent was called upon to address me on the legality and/or propriety of such order. 11. Mrs. Biswas submitted that whatever information could be furnished to the petitioner under the provisions of the Act were furnished and refusal to furnish the balance information being based on cogent reasons, the Court ought to stay at a distance. 12. Attention of Mrs. Biswas was drawn to the first paragraph of the impugned order wherein it is recorded that Lt. Commander Sheik Kabir had spoken to the CIC on telephone. Relying to aquery of the Court, on instructions received from an officer present in Court, She submitted that Sheik Kabir called up the CIC on his telephone and had made submission. 13. There cannot be any doubt that the CIC in terms of the provisions of the Act performs quasi-judicial functions. The procedure for hearing an appeal is provided in Rule 5 of the Central Information Commission (Appeal Procedure) Rules, 2005 (hereafter the Rules). Hearing the Central Public Information Officer, referred to in clause (iv) thereof, implies hearing at the venue of hearing in the presence of the CIC, and not on telephone. Having regard to the advancement in technology, hearing could also be arranged through video conference, subject to appropriate changes in the statutory provisions being made in this behalf. Hearing the Central Public Information Officer, referred to in clause (iv) thereof, implies hearing at the venue of hearing in the presence of the CIC, and not on telephone. Having regard to the advancement in technology, hearing could also be arranged through video conference, subject to appropriate changes in the statutory provisions being made in this behalf. However, entertaining a telephone call from the Central Public Information Officer, who has denied the request for information, for hearing his version is not envisaged in Rule 5 of the Rules. Similar is the position in regard to Regulation 18 of the Central Information Commission (Management) Regulations, 2007? (hereafter the Regulations). It is true that in terms of Section 19(5) of the Act the onus to prove that the denial of request is justified shall be on the Central Public Information Officer but there cannot be any justification for entertainment of a telephone call for hearing his version. It is unheard of that a party to the lis could approach the adjudicator by calling him on his telephone and engage in conversation that is private, behind the back of the appellant. The CIC ought not to have entertained the call given to him by Sheik Kabir. 14. Assuming that the CIC was inclined to dispose of the appeal on merits after hearing the PIO and had no wrong intention in taking the call of Sheik Kabir and speaking to him on telephone, appropriate attempt should have been made by the CIC to speak to the petitioner as well. In his letter dated 22nd December, 2012, the petitioner had disclosed his mobile phone number and contact could have been established with him conveying the stand of the PIO and for hearing the petitioner’s version in answer thereto. 15. The procedure adopted by the CIC being contrary to the statutory provisions, cannot be countenanced. 16. Turning attention to the merits of the order impugned passed by the CIC, it has appeared to me to be indefensible. The provisions of the Act cited by the PIO i.e. clauses (e), (g) and (j) of sub-section (1) of Section 8 of the Act do not absolutely bar furnishing of information, which are related to third party information. Even personal information is open to disclosure in the larger public interest. The provisions of the Act cited by the PIO i.e. clauses (e), (g) and (j) of sub-section (1) of Section 8 of the Act do not absolutely bar furnishing of information, which are related to third party information. Even personal information is open to disclosure in the larger public interest. Rejection of the petitioner’s request for information by the PIO and the first appellate authority citing clause (g) of sub-section (1) of Section 8 of the Act appears to be a misdirected exercise. There appears to be no explanation as to how the nature of disclosure sought for by the petitioner would endanger the life and physical safety of the said Ajit Kumar. That apart, there is no question of the second part of clause (g) being violated if information sought for by the petitioner were disclosed. That apart, applicability of clauses (e) and (j) ought to have been considered keeping in view the contents of paragraph 40 of the decision of the Supreme Court in Central Board of Secondary Education vs. Aditya Bandopadhyay, reported in (2011) 8 SCC 497 . Since the petitioner’s endeavour has been to ascertain whether the said Ajit Kumar obtained public employment by producing fake caste certificate or not and the employer runs the risk of being subjected to unnecessary complications and inconveniences should the petitioner’s allegation be found to be true, I have failed to comprehend as to why such sensitive issue was not treated to be a matter of larger public interest. Corruption and nepotism are perhaps at its peak in the country. Eradication of these two vices from society should be the aim of any sensible person in power. The allegation made by the petitioner that the said Ajit Kumar obtained public employment by producing a fake caste certificate ought to have been considered with more seriousness. Rule 5 of the Rules and Regulation 18 of the Regulations sufficiently empower the CIC to inquire and unearth facts. The allegation made by the petitioner that the said Ajit Kumar obtained public employment by producing a fake caste certificate ought to have been considered with more seriousness. Rule 5 of the Rules and Regulation 18 of the Regulations sufficiently empower the CIC to inquire and unearth facts. If indeed the CIC were of the opinion that information relating to the said Ajit Kumar have no element of public interest, as contended by the officers who had refused information sought for by the petitioner, at least the machinery for obtaining the details or facts in relation to the appointment of the said Ajit Kumar ought to have been set in motion and records called for to reach a satisfaction that there has been no fraudulent practice in appointing him. Drawing inspiration from the observations of the Supreme Court in District Collector & Chairman, Vizianagram Social Welfare Residential School Society Vizianagram and anr. vs. M. Tripura Sundari Devi, reported in (1990) 3 SCC 655 , I would hold that where an allegation of someone obtaining public employment by using a fake caste certificate thereby depriving other eligible candidates of such employment is received by the employer, it is no longer a matter only between the employer and the employee concerned. The aggrieved are all those reserved category candidates who are bypassed in the matter of employment. It amounts to a fraud on public to employ an ineligible candidate on a post not meant for him and no authority, much less the CIC, should be a party to the perpetration of the fraudulent practice. 17. The object of the Act is to ensure smoother and greater access of information. The provisions thereto are intended to unearth the truth, which hitherto before were kept in wraps. If a serious allegation of obtaining of public employment by producing a fake caste certificate is not considered to be in the large public interest, I wonder what the CIC’s perception of larger public interest is. Refusing information by holding that larger public interest is not involved, without anything more, is too simplistic and derogatory to the object of the Act which envisions disclosure of information as the rule and refusal an exception. 18. In my considered view, the CIC has not addressed the second appeal filed by the petitioner with the seriousness and attention the same deserved. 19. 18. In my considered view, the CIC has not addressed the second appeal filed by the petitioner with the seriousness and attention the same deserved. 19. In the result, the writ petition succeeds in part. The impugned order dated 27th December, 2012 stands set aside. The second appeal would, consequently, stand revived. The CIC is directed to proceed in accordance with law to decide the appeal afresh within 30 days from the date of receipt of a copy of this order. 20. The observations made above are meant for the purpose of disposal of the writ petition, and without prejudice to the rights and contentions of the said Ajit Kumar. Needless to observe, the said Ajit Kumar ought to be heard if at all a prima facie satisfaction is reached by the CIC that the larger public interest demands dissemination of information to the petitioner. 21. There shall be no order for costs.