number of vacancies which have fallen to the share of the specified
category and whether such posts have been filled up from amongst
the eligible candidates. If such information is disclosed, it will lead
to transparent administration which is antithesis of corruption. If
organization has nothing to hide or to cover a corrupt practice, the
information should be made available. The information sought may
help in dispelling favoritism, nepotism or arbitrariness. Such
information is necessary for establishing the transparent
administration. Therefore, we do not find any illegality in the order
passed by the State Information Commissioner, Haryana and
affirmed by learned Single Judge in the orders impugned in the
present appeals.
Dismissed.”
Section 24 (4) of the Act is reproduced below:-
“24. Act not to apply to certain organizations:
Nothing contained in this Act shall apply to such intelligence and
security organizations, being organizations established by the State
Government, as that Government may, from time to time, by
notification in the Official Gazette, specify:
Provided that the information pertaining to the allegations of
corruption and human rights violations shall not be excluded under
this sub-section:
Provided further that in the case of information sought for is
in respect of allegations of violation of human rights, the information
shall only be provided after the approval of the State Information
Commission and, notwithstanding anything contained in Section 7,
such information shall be provided within forty-five days from the
date of the receipt of request.”
Thus, the Division Bench has held that even where the State
Government is empowered by issuance of notification to exempt certain
organizations from the applicability of the Act yet in respect of information
pertaining to allegation of corruption shall not be excluded under Sub
Section (4) of Section 24 of the Act.
In the present case as noticed the petitioner seeks the
information regarding the corruption and details of corruption cases
pertaining to the public servants in the State of Haryana. Keeping in view
the above principles laid down by the Division Bench in First Appellate
Authority-cum-Additional Director General of Police's case (supra) and
fact that the judgment of the Apex Court in Girish Ramchandra
Deshpande's case (supra) is not applicable in the facts and circumstance of
the present case, this Court is of the opinion that order 2.4.2014 (Annexure
P/6) passed the respondent-Commission requires a revisit and cannot be
sustained.
Accordingly, the present writ petition is allowed. The
impugned order 2.4.2014 (Annexure P/6) passed by the respondentCommission
is quashed. The respondent-Commission shall decide the
second appeal afresh keeping in view the above principles laid down by the
Division Bench in First Appellate Authority-cum-Additional Director
General of Police's case
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.17718 of 2014 (O&M)
Date of decision: 26.7.2016
Subhash ..
V
State Information Commission, Haryana and others .
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
The petitioner challenges order dated 2.4.2014 (Annexure P/6)
whereby the respondent-Commission has upheld order dated 20.11.2013
(Annexure P/2) passed by respondent no.2-State Public Information
Officer-cum-Deputy Secretary to Government, Haryana, Personnel
Department and the order dated 16.12.2013 (Annexure P/4) passed by the
Secretary to Government, Haryana Personnel Department-cum-First
Appellate Authority. The respondent-Commission came to the conclusion
that the information had been rightly denied to the petitioner while placing
reliance upon the judgment of the Apex Court in Girish Ramchandra
Deshpande Vs. Central Information Commissioner and others 2012(8)
SCR 1097 and a finding was recorded that the information which was
sought was primarily between the employee and the employer and therefore
disclosure of which had no relationship to any public authority or public
interest. The petitioner's argument that citizen has a right to know the
action taken against public servants involved in corruption charges was
accordingly not taken into consideration while upholding the orders passed
by the authorities below. Resultantly, the present writ petition has been
filed.
Counsel for the petitioner at the very out set submits that out of
the information which is sought vide application dated 24.10.2013
(Annexure P/1), he restricts his claim only to the issue of corruption against
the officers and does not press for the information regarding other
complaints and disciplinary action taken against the said officers. The
information which was sought under the Right to Information Act, 2005
(hereinafter referred to as “the Act”) reads as under:-
“Subject: Application under the RTI Act.
Subject matter of information : Information about the complaints and
corruption cases against the serving and retired IAS, IPS, IRS, HCS,
HPS officers.
Sir,
Please furnished below mentioned information under the RTI
Act.
1. Against how many officers of the aforesaid cadre the cases (of
all types) were registered, during the aforesaid period?
2. Please inform about the action taken by the State Government
against such officers.
3. In how many cases the actions/proceedings are still pending?
As per record, please inform the reasons for pendency.
4. As per the State Government Rules, what benefits of such
officers can be withheld?
5) Please inform, benefits of how many officers were withheld?
Please provide the name and designation of such officers.
6) Please provide the names and designations of such officers,
who were granted all benefits like increments, promotion, extension
of service, reinstatement etc. despite registration of cases against
them.
7) Please provide the copy of orders vide which the service
benefits were given to such officers against whom cases had been
registered. Also provide the names and designations of such officers
who granted service benefits to the officers against whom cases had
been registered.”
It is not disputed that regarding Clause 4, necessary relief has
already been granted by the respondent-Commission and the petitioner is
also not aggrieved against the same as the matter has been transferred to
appropriate authority under Section 6(3) of the Act for furnishing
information. However, a perusal of the above information sought would go
on to show that the petitioner seeks information as to the cases of all types
which were registered against the said officers.
As noticed above, the petitioner has restricted his relief only to
the corruption cases against the officers. The Indian Revenue Service
officers will not be covered under the claim filed as the respondent-SPIO
would not be competent to supply information for the said service.
Resultantly the dispute only pertains to IAS, IPS, HCS and HPS officers
both serving and retired of the State of Haryana. The information thus
sought was regarding action taken against them and whether any benefit had
been withheld like increments, promotion, extension of service,
reinstatement etc. despite registration of cases. The information has also
been asked to provide the names and designations of such officers who
granted service benefits to the said officers against whom the cases had
been registered and in spite of which had been granted service benefits.
Respondent no.2-SPIO rejected the application (Annexure P/1)
for supply of information vide order dated 20.11.2013 (Annexure P/2) on
the ground that the same were qualified to be personal information as
defined in Clause (j) of Section 8(1) of the Act. The performance of an
employee/officer being primarily a matter between the employee and the
employer was held to be personal information and the disclosure of which
had no relationship to any public activity or public interest. Finding was
further recorded that disclosure of such information would cause
unwarranted invasion of privacy of the individual.
Dissatisfied with the said order, an appeal was filed before
respondent no.3-First Appellate Authority under the Act who also reiterated
the said order while placing reliance upon the judgment of the Apex Court
in Girish Ramchandra Deshpande's case (supra).
Thereafter second appeal was filed under Section 19(3) of the
Act which as noticed above upheld the orders of the authorities below by
coming to the conclusion that information had rightly been denied and that
the show cause notices and orders of censure/punishment etc. are qualified
to be personal information. It is this finding which is subject matter of
challenge in the present writ petition.
Counsel for the petitioner has vehemently submitted that the
right of citizen to know about the information of the corruption cases
pending against public servants cannot be held to be personal information,
the disclosure of which can be kept back. It is accordingly submitted that
the respondent-Commission has erred while passing the said order while
placing reliance upon the judgment of the Apex Court in Girish
Ramchandra Deshpande's case (supra).
Counsel for the State on the other hand defended the said order
and submitted that the petitioner was not entitled for the said information
since it was a personal information and it was not necessary for him to be
privy to the same and the information sought pertains between the employee
and employer and there was no public interest involved.
This Court is of the opinion that reliance upon the judgment of
the Apex Court in Girish Ramchandra Deshpande's case (supra) in the
facts and circumstances of the case was not justified. A perusal of the said
judgment would go on to show that information sought was pertaining to
personal matter of the service career and also details of assets and liabilities
of the respondent which was sought under the Act. Resultantly, the Apex
Court after examining Section 8(1)(j) of the Act came to the conclusion that
the gifts which were accepted by the third respondent, his family members,
friends and relatives which were found mention in the Income Tax Returns
would be personal information which could be denied under the above said
provisions. It was further held that copies of the memos, show cause
notices and censure/punishment and details of the investments, lending and
borrowing from Banks and other financial institutions could not be given to
the applicant since it would amount to unwarranted invasion of privacy of
the individual. Resultantly, the order of the Central Information
Commissioner was upheld and the writ petition was dismissed. Relevant
portion of the judgment reads as under:-
12. The petitioner herein sought for copies of all memos, show
cause notices and censure/punishment awarded to the third
respondent from his employer and also details viz. movable and
immovable properties and also the details of his investments, lending
and borrowing from Banks and other financial institutions. Further,
he has also sought for the details of gifts stated to have accepted by
the third respondent, his family members and friends and relatives at
the marriage of his son. The information mostly sought for finds a
place in the income tax returns of the third respondent. The question
that has come up for consideration is whether the above-mentioned
information sought for qualifies to be “personal information” as
defined in clause (j) of Section 8(1) of the RTI Act.
13. We are in agreement with the CIC and the courts below that
the details called for by the petitioner i.e. copies of all memos issued
to the third respondent, show cause notices and orders of
censure/punishment etc. are qualified to be personal information as
defined in clause (j) of Section 8(1) of the RTI Act. The performance
of an employee/officer in an organization is primarily a matter
between the employee and the employer and normally those aspects
are governed by the service rules which fall under the expression
“personal information”, the disclosure of which has no relationship
to any public activity or public interest. On the other hand, the
disclosure of which would cause unwarranted invasion of privacy of
that individual. Of course, in a given case, if the Central Public
Information Officer or the State Public Information Officer of the
Appellate Authority is satisfied that the larger public interest justifies
the disclosure of such information, appropriate orders could be
passed but the petitioner cannot claim those details as a matter of
right.
14. The details disclosed by a person in his income tax returns are
“personal information” which stand exempted from disclosure under
clause (j) of Section 8(1) of the RTI Act, unless involves a larger
public interest and the Central Public Information Officer or the State
Public Information Officer or the Appellate Authority is satisfied that
the larger public interest justifies the disclosure of such information.
15. The petitioner in the instant case has not made a bona fide
public interest in seeking information, the disclosure of such
information would cause unwarranted invasion of privacy of the
individual under Section 8(1)(j) of the RTI Act.
16. We are, therefore, of the view that the petitioner has not
succeeded in establishing that the information sought for is for the
larger public interest. That being the fact, we are not inclined to
entertain this special leave petition. Hence, the same is dismissed.”
Section 8(1) (j) of the Act reads is reproduced as under:-
“8. Exemption from disclosure of information.- (1)
Notwithstanding anything contained in this Act, there shall be no
obligation to give any citizen,-
xxx xxx xxx
(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.”
In the present case as noticed from the application, no personal
information as such is being sought for against any one officer. General
detail of the corruption cases pending against the serving and retired public
servants and as to whether in spite of registration of such corruption cases,
the service benefits to such officers had been given or not and which
officer had passed such orders were sought for. It is thus apparent that what
is being sought is the information relating to corruption and it is not the
information pertaining to a particular individual as such. The respondentCommissioner,
however, in spite of noticing the fact that the appellant had
raised this issue has not given any valid reason while upholding the orders
of authorities below and has only given a stamp of approval to the same.
The Division Bench of this Court in First Appellate
Authority-cum-Additional Director General of Police and another Vs.
Chief Information Commissioner, Haryana and another 2011 AIR
(Punjab) 168 while noting the purpose of the Act, held that information
pertaining to corruption is a relevant document and cannot be denied. It
was held that such information leads to transparent administration which is
antithesis of corruption. In the said case, the information of vacancies was
sought from the CID Department of Police and was denied on the ground
that there was an exemption from disclosure as per notification issued by
the Haryana Government under Section 24(4) of the Act. The information
had not been supplied and the appeal had been dismissed by the First
Appellate Authority. However, the State Information Commission had
allowed the appeal and directed that information be supplied as it would
lead to eradication of corruption and violations of human rights from the
sensitive department of CID. The said order was upheld by the Single
Judge which was subject matter of appeal before the Division Bench. The
Division Bench came to the conclusion that the Act was a step-in-aid to
establish the society governed by law and notification under Section 24(4)
of the Act would not exempt the information which pertains to corruption
since the Act itself provided that the notification could not include the
allegation of corruption and human rights violations. It was observed as
under:-
“13. The scope of expression administrative corruption includes
arbitrariness in implementation of policies, grant of benefit to the
officers in violation of the Rules. Therefore, the information in
respect of the available vacancies and the manner in which such
vacancies are filled up would be relevant to exclude the allegations
of corruption.
14. Another write up is available on http://
www.thegeminigeek.com. The word corruption is explained as
destructive, ruining or the spoiling of the society or a nation. The
corrupt society stops prevailing integrity, virtue or moral principles.
It changes for the worse. Such a society begins to decay and sets
itself on the road to self destruction. Corruption is an age old
phenomena. Selfishness and greed are the two main causes of
corruption. Political corruption is the abuse of the powers by state
officials for their unlawful private gain. A corrupt society is
characterized by immorality and lack of fear and respect for the law.
Corruption cannot be divorced from economics and inequality of
wealth, low wages and salaries are some of the economic causes of
corruption. Corruption has prevailed in all forms of government.
Various forms of corruption include extortion, graft, bribery,
cronyism, nepotism, embezzlement and patronage. Corruption
allows criminal activities such as money laundering, extortion and
drug trafficking to thrive.
15. As mentioned above, the expression pertaining to allegation of
corruption cannot be exhaustively defined. The Act is to step-in-aid
to establish the society governed by law in which corruption has no
place. The Act envisages a transparent public office. Therefore, even
in organizations which are exempt from the provisions of the Act, in
terms of the notification issued under Section 24(4)of the Act, still
information which relates to corruption or the information which
excludes the allegation of corruption would be relevant information
and cannot be denied for the reasons that the organization is
exempted under the Act.
16. The information sought in the present case is in respect of the
number of vacancies which have fallen to the share of the specified
category and whether such posts have been filled up from amongst
the eligible candidates. If such information is disclosed, it will lead
to transparent administration which is antithesis of corruption. If
organization has nothing to hide or to cover a corrupt practice, the
information should be made available. The information sought may
help in dispelling favoritism, nepotism or arbitrariness. Such
information is necessary for establishing the transparent
administration. Therefore, we do not find any illegality in the order
passed by the State Information Commissioner, Haryana and
affirmed by learned Single Judge in the orders impugned in the
present appeals.
Dismissed.”
Section 24 (4) of the Act is reproduced below:-
“24. Act not to apply to certain organizations:
Nothing contained in this Act shall apply to such intelligence and
security organizations, being organizations established by the State
Government, as that Government may, from time to time, by
notification in the Official Gazette, specify:
Provided that the information pertaining to the allegations of
corruption and human rights violations shall not be excluded under
this sub-section:
Provided further that in the case of information sought for is
in respect of allegations of violation of human rights, the information
shall only be provided after the approval of the State Information
Commission and, notwithstanding anything contained in Section 7,
such information shall be provided within forty-five days from the
date of the receipt of request.”
Thus, the Division Bench has held that even where the State
Government is empowered by issuance of notification to exempt certain
organizations from the applicability of the Act yet in respect of information
pertaining to allegation of corruption shall not be excluded under Sub
Section (4) of Section 24 of the Act.
In the present case as noticed the petitioner seeks the
information regarding the corruption and details of corruption cases
pertaining to the public servants in the State of Haryana. Keeping in view
the above principles laid down by the Division Bench in First Appellate
Authority-cum-Additional Director General of Police's case (supra) and
fact that the judgment of the Apex Court in Girish Ramchandra
Deshpande's case (supra) is not applicable in the facts and circumstance of
the present case, this Court is of the opinion that order 2.4.2014 (Annexure
P/6) passed the respondent-Commission requires a revisit and cannot be
sustained.
Accordingly, the present writ petition is allowed. The
impugned order 2.4.2014 (Annexure P/6) passed by the respondentCommission
is quashed. The respondent-Commission shall decide the
second appeal afresh keeping in view the above principles laid down by the
Division Bench in First Appellate Authority-cum-Additional Director
General of Police's case (supra).
July 26, 2016 (G.S.SANDHAWALIA)
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