Law Web: Whether information regarding corruption can be disclosed under RTI?

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:

xxx xxx xxx

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

State Information Commission, Haryana and others

CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA

Citation: 2016(6) ALLMR(JOURNAL)43

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.