Departmental Enquiry under Section 20 of RTI Act
- Part 2 -

A. Romen Kumar Singh *

DETAILS DISCLOSED IN INCOME TAX RETURNS ARE PERSONAL INFORMATION

The Supreme Court further held on Para 13 that 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.

NAMES OF MEMBERS OF THE INTERVIEW BOARD CANNOT BE DISCLOSED TO ANY PERSON

Bihar Public Service Commission V. Saiyed Hussain Abbas Rizwi, 2012(12) SCALE 525.

In this case, the appellant, Bihar Public Service Commission published advertisement to fill up posts of "State Examiner of Questioned Documents".

As very limited numbers of applications were received, the commission decided against holding of written examination. It exercised the option to select the candidates for appointment on the basis of viva-voce test alone. The commission completed the process of selection and recommended the panel of selected candidates to the State. Respondent No. 1 claiming to be public spirit citizen, filed an application before the State Public Commission under the Right to Information Act seeking information regarding selection process with regard to that advertisement.

The commission furnished information to all queries but stated that name, designation and addresses of members of the Interview Board could not be furnished as they were not required to be supplied in accordance with the provisions of Section 8 (1) (g) of the Act.

Respondent filed writ petition challenging decision of the commission. Division Bench of the High Court allowed the petition and directed the commission to communicate the information sought to the respondent. The commission filed the SLP before the Supreme Court and allowed the appeal by holding that the commission was not duty bound to disclose the names of members of the Interview Board to any person including the examinee and further held at page 537 Para 30 that the disclosure of names and addresses of the members of the Interview Board would ex facie endanger their lives or physical safety.

The possibility of failed candidate attempting to take revenge from such person cannot be ruled out. On the other hand, it is likely to expose the members of the Interview Board to harm and, on the other, such disclosure would serve no fruitful much less any public purpose.

Furthermore, the view of the High Court in the judgement under appeal that element of bias could be traced and would be crystallized only if the names and addresses of the examiners/interviewers are furnished is without any substance. The element of bias can hardly be co-related with the disclosures of the names and addresses of the interviewers. Bias is not a ground which can be considered for or against a party making an application to which exemption under Section 8 is pleaded as a defence.

We are unable to accept the reasoning of the High Court. Suffice is to note that the reasoning of the High Court is not in conformity with the principles stated by this court in C.B.S.E V. Aditya Bandopadhyay, (2011) 8 SCC 497; 2011 (8) SCALE 645 (Supra) D.E.

RECOMMENDATION OF INFORMATION COMMISSION TO INITIATE DISCIPLINARY ACTION U/S 20 OF RTI ACT SHOULD BE AFTER APPLYING PRINCIPLES OF NATURAL JUSTICE

Manohar S/o Manik Rao ANCHULE V. State of Maharashtra, 2012 (12) SCALE 601.

1. In this case, the appellant Manohar was working as Superintendent in the State Excise Department and was designated as the Public Information Officer. One Shri Ram Narayan, Respondent No. 2 sought certain information from Shri Manohar, PIO and he forwarded the application to the concerned Department but Respondent No. 2 did not receive the information. He filed an appeal before the collector and the collector forwarded the appeal to the office of the appellant. Respondent No. 2 filed an appeal before the State Information Commission regarding non-providing of information asked for. The appellant filled the application for grant of extension of time as he was unable to appear before the commission for official reasons. In the meantime, the appellant was transferred to another District.

2. The State Commission without considering the application of the appellant directed the commissioner for State Excise to initiate disciplinary action against the appellant as per the service Rules.

3. Writ Petition filed by the appellant against the order of the commission was dismissed by the High Court by observing that the appellant ought to have passed the appropriate order in the matter.

4. The appellant brought the matter before the Supreme Court questioning whether the order of the State Information Commission affirmed by the High Court was in violation of the principles of natural justice.

Allowing the appeal the Supreme Court held:-

5. STATE COMMISSION IS EXERCISING QUASI-JUDICIAL POWERS

(i) State Information Commissions exercise very wide and certainly quasi-judicial powers. In fact their functioning is akin to the judicial system rather than executive decision making process [Para 14]

(ii) COMMISSION IS VESTED WITH WIDE POWERS AND SUCH POWERS WOULD BRING CIVIL CONSEQUENCED

The State Information Commission has been vested with wide powers including imposition of penalty or taking of disciplinary action against the employees. Exercise of such power is bound to adversely affect or to bring civil consequences to the delinquent. Thus, the provisions relating to penalty or to penal consequences have to be construed strictly. It will not be open to the court to give them such liberal construction that it would be beyond the specific language of the statute or would be in violation of the principles of natural justice.[Para 16]

(iii) ADJUDICATORY PROCESS OF COMMISSION HAS TO BE IN CONSONANCE WITH PRINCIPLES OF NATURAL JUSTICE

The State Information Commission in performing adjudicatory functions where two parties raise their respective issues to which State Information Commission is expected to apply its mind and pass an order directing disclosure of the information asked for or declining the same. Either way, it affects the rights of the parties who have raised rival contentions before the commission. If there were no rival contentions, the matter would rest at the level of the designated Public Information Officer or immediately thereafter. It comes to the State Information Commission only at the appellate stage when rights and contentions require adjudication. The adjudicatory process essentially has to be in consonance with the principles of natural justice, including the doctrine of audi alteram partem. Hearing the parties, application of mind and recording of reasoned decision are the basic elements at natural justice. It is not expected of the commission to breach any of the principles, particularly when its orders are open to judicial review. Much less to Tribunals of such commissions, the courts have even made compliance to the principle of rule of natural justice obligatory in the class of administrative matters as well. [Para 17].

6. S.20(2) EMPOWERS THE COMMISSION TO RECOMMEND FOR DISCIPLINARY ACTION AGAINST PUBLIC INFORMATION OFFICER.

We may notice that proviso to Section 20 (1) specifically contemplates that before imposing the penalty contemplated under Section 20 (1), the commission shall give a reasonable opportunity of being heard to the concerned officer. However, there is no such specific provision in relation to the matters covered under Section 20 (2). Section 20 (2) empowers the central or the State Information Commission, as the case may be, at the time of deciding a complaint or appeal for the reasons stated in that section, to recommend for disciplinary action to be taken against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the relevant service rules. Power to recommend disciplinary action is a power exercise of which may impose penal consequences. When such a recommendation is received, the disciplinary authority would conduct the disciplinary proceedings in accordance with law and subject to satisfaction of the requirements of law.

7. RECOMMENDATION NOT MANDATE

It is a "recommendation" and not a "mandate" to conduct an enquiry. "Recommendation" must be seen in contradiction to "direction" or "mandate". But recommendation itself vests the delinquent Public Information Officer or State Public Information with consequences which are of serious nature and can ultimately produce prejudicial results including misconduct within the relevant service rules and invite minor and/or major penalty. [Para 21]

8. PRINCIPLES OF NATURAL JUSTICE HAVE TO BE READ INTO SECTION 20 (2). Thus, the principles of natural justice have to be read into the provisions of Section 20 (2). It is a settled canon of civil jurisprudence including service jurisprudence that no person be condemned unheard.

Directing disciplinary action is an order in the form of recommendation which has far reaching civil consequences. It will not be permissible to take the view that compliance with principles of natural justice is not a condition precedent to passing of a recommendation under Section 20 (2). [Para 22].

9. UNLESS SPECIFICALLY EXCLUDED PRINCIPLE OF NATURAL JUSTICE SHALL BE APPLIED.

Thus, the principle is clear and settled that right of hearing, even if not provided under a specific statute, the principles of natural justice shall so demand, unless by specific law, it is excluded. It is more so when exercise of authority is likely to vest the person with consequences of civil nature. [Para 23]

CONCLUSION

There could be cases where there is reasonable cause shown and the officer is able to demonstrate that there was no persistent default on his part either in receiving the application or furnishing the requested information.

In such circumstances, the law does not require recommendation for disciplinary proceedings to be made.

It is not the legislative mandate that irrespective of the facts and circumstances of a given case, whether reasonable cause is shown or not, the commission must recommend disciplinary action merely because the application was not responded to within 30 days. Every case has to be examined on its own facts.

Concluded....