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2015 DIGILAW 1048 (GAU)

Z. Khawzawl v. Mizoram Information Commission

2015-08-18

MANOJIT BHUYAN

body2015
JUDGMENT : Manojit Bhuyan, J. 1. Heard Mr. Lalfakawma, learned counsel representing the petitioner as well as Mr. Aldrin Lallawmzuala, learned Addl. Advocate General, Mizoram representing the respondent No. 1. Also heard Mr. Samuel Vanlalhriata Chhangte, learned Govt. Advocate, Mizoram representing the respondent Nos. 2 to 6. Way back on 27.04.2012 the petitioner was employed as a Muster Roll employee at Mizoram House, Silchar and was dismissed from service. On a challenge made to the order of dismissal, this Court had set aside the same by Order dated 3.9.2012 passed in W.P.(C) No. 54 of 2012. This Court had observed that since the dismissal had come about without hearing the petitioner, as such, a direction was made for taking a conscious decision on the issue of re-engagement of the petitioner as well as with regard to his prayer for regularization. Pursuant thereto, an order came to be passed on 25.5.2013 under the hand of the Commissioner and Secretary to the Government of Mizoram, General Administration Department whereby a decision was taken that the petitioner does not deserve to be re-engaged. On a perusal of the Order dated 22.5.2013, it appears that while arriving at the said decision, the statements of 27 employees had been taken into consideration. Out of the said 27 employees, at least 16 of them, whose names have also indicated, had deposed that the petitioner while working as a Muster Roll employee used to be under the influence of alcohol even during office hours and he also used to intimidate his fellow colleagues. 2. It is the case of the petitioner that copies of the depositions of the 27 employees, more particularly the first 16 who have been named, were not made available to the petitioner, as a result of which, he made an application under the Right to Information Act before the State Public Information Officer on 1.7.2013. In the said application information with regard to copies of the statements collected by the SDO(C) Vairengte vide A.22017/5/2004-GAD Sl. No. 8410 was asked for. The said application seeking information was responded to by the respondent concerned expressing inability to furnish the information as asked for on account of the reason that the information would cause unwarranted invasion of the privacy of the employees concerned which is not permitted under Section 8(1)(g) of the RTI Act, 2005. 3. No. 8410 was asked for. The said application seeking information was responded to by the respondent concerned expressing inability to furnish the information as asked for on account of the reason that the information would cause unwarranted invasion of the privacy of the employees concerned which is not permitted under Section 8(1)(g) of the RTI Act, 2005. 3. Being aggrieved, the petitioner filed an appeal before the First/Departmental Appellate Authority by indicating the names of the persons whose statement copies were being sought. According to the petitioner, the said appeal also stood disposed of on 13.8.2013 by denying the information sought for on grounds that none of the employees are willing to disclose the contents of their respective statements. Thereafter, the matter was taken up before the Mizoram State Information Commission, Aizawl by filing a second appeal under Section 19(3) of the aforesaid Act of 2005. The petitioner was once again denied information sought for on the premises that the information cannot be made available on account of the prescription under section 8(1)(g), section 8(1)(J) and section 11 of the RTI Act of 2005. Constrained thus, the petitioner have instituted the present proceedings. 4. In the affidavit-in-opposition filed on behalf of respondent No. 1 as well as in the affidavit filed on behalf of respondent Nos. 2 to 6, the contentions raised are in sync with the various orders under challenge in the present writ petition. 5. The point for determination in the present proceedings is as to whether having regard to the facts of the case, the State respondent could legally take recourse to the provision under Sections 8(1)(g) and (j) read with Section 11 of the RTI Act, 2005 to deny the information sought for by the petitioner. To that end it would be expedient to reproduce the aforesaid provisions of the Act for a better understanding. "Section 8. Exemption from disclosure of information -(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- (a) .......................... (b) .......................... (c) .......................... (d) .......................... (e) .......................... (f) .......................... (g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; (h) .......................... (i) .......................... (b) .......................... (c) .......................... (d) .......................... (e) .......................... (f) .......................... (g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; (h) .......................... (i) .......................... (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the Appellate Authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person". Section 11 reads as: ...Third Party information.- (1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party." 6. A bare reading of section 8(1)(g) makes it abundantly clear that disclosure of information can be denied if it would amount to endangering the life or physical safety of any person or amounts to identifying the source of information or assistance given in confidence for law enforcement or security reason: Section 8(1)(j) puts an embargo in giving out personal information which do not involve any public interest or would result in unwarranted invasion of privacy of the individual concerned. 7. In this instant case, the petitioner is only concerned with the adverse statements made by at least 16 employees which resulted in the decision of the authority concerned finding him un-deserving of being re-engaged. The facts in the instant case do not pertain to any information concerning law enforcement or security purposes. Further, the information sought for cannot be construed as personal information, inasmuch as, the said information have formed the basis for removing the petitioner from service. Right to life and liberty and the rule of law do not allow any unfettered discretion on the part of the respondent authorities so as to cause prejudice to any person. In the name of personal information and invasion of privacy of the employees, the petitioner cannot be left in the lurch to deny him the right to adequately and effectively challenge the Order of termination before a competent Court of law. Recourse to Section 8(1)(g) and 8(1)(j) cannot be allowed to be taken to deny the right of the petitioner under the Right to Information Act, 2005. This is not a case where the petitioner have sought information relating to personal details of the employees, save and except only such information which had formed the edifice of removing him from service. 8. In so far as the applicability of section 11 of the Act is concerned, the same envisages that if the authority intends to disclose any information or record which have been supplied by a third party and has been treated as confidential, in that event, the authority is required to give a written notice to such third party about the request so made and to invite the third party for making submission in writing or orally as to whether the information sought for should be disclosed or not. In the present case, save and except a bald statement made by the First Appellate Authority to the effect that none of the employees are willing to disclose the contents of their respective statements, no records have been produced nor any documents have been enclosed in the affidavit-in opposition filed by the State respondents to indicate the fulfillment of the condition precedent of Section 11 of the Act of 2005. 9. Having noticed the facts above, more particularly the fact that the statements of the employees had formed the edifice/foundation of the decision on the unsuitability of the petitioner for re-engagement in service, the said information sought for, cannot be construed as personal information of the employees concerned and that the disclosure of such information would amount to unwarranted invasion of the privacy of the said employees. 10. On a conspectus of the provisions reproduced above, there is no manner of doubt that information as sought for could not have been denied to the petitioner by taking recourse to Sections 8(1)(g), 8(1)(j) and Section 11 of the Act, as the same are not applicable to the case of the petitioner. 11. In view of the above, this writ petition stands allowed by setting aside/quashing the Order dated 5.7.2013 issued by the respondent No. 3, the Order dated 13.8.2013 issued by the respondent No. 2 as well as the Order dated 4.3.2014 issued by the respondent No.1. Upon setting aside the said Orders, direction is also made to the respondents to forthwith furnish the copies of the statements of the 27 employees whose statement/deposition have been sought for by the petitioner under the RTI Act, 2005. The exercise for making available the said statements/deposition to the petitioner be completed by the respondents within a period of 3 (three) weeks from the date of receipt of a copy of this Order. The petitioner is permitted to produce a copy of this Order before the respondents for their doing the needful in terms of the directions above. Accordingly, this writ petition stands allowed. No cost.