Back
2012 Supreme(Del) 2054
THE HIGH COURT OF DELHI AT NEW DELHI
RAJIV SHAKDHER, J.
UNION OF INDIA & ORS. - Petitioners
Vs.
COL. V.K. SHAD - Respondent
WP(C) 499/2012 & CM 1059/2012 AND WP(C) 1138/2012 & CM 2462/2012 AND WP(C) 1144/2012 & CM 2486/2012
Decided on : 09.11.2012
For the Petitioners:Mr Rajeeve Mehra, Additional Solicitor General with Mr Ankur Chibber, Ms Aakriti Jain & Mr Ashish Virmani, Advocates.
For the Respondents:Col. V.K. Shad, Respondent in person in WP(C) No. 499/2012.
Headnote:
RIGHT TO INFORMATION ACT, 2005 - SECTION 8(1)(E) - EXEMPTION FROM DISCLOSURE OF INFORMATION - FIDUCIARY RELATIONSHIP - SCOPE AND APPLICABILITY - HELD, NOTES ON FILES AND OPINIONS OF JAG BRANCH ARE INFORMATION WITHIN THE MEANING OF THE RTI ACT AND ARE NOT EXEMPT FROM DISCLOSURE UNDER SECTION 8(1)(E) OF THE ACT.
Fact of the Case:
PETITIONERS, OFFICERS OF THE INDIAN ARMY, SOUGHT INFORMATION UNDER THE RTI ACT, INCLUDING OPINIONS OF THE JUDGE ADVOCATE GENERAL (JAG) AND NOTINGS ON FILES RELATING TO INQUIRIES CONDUCTED AGAINST THEM. THE PIO DENIED THE INFORMATION, CITING SECTION 8(1)(E) OF THE RTI ACT, WHICH EXEMPTS INFORMATION AVAILABLE TO A PERSON IN HIS FIDUCIARY RELATIONSHIP FROM DISCLOSURE. THE FIRST APPELLATE AUTHORITY UPHELD THE PIO'S DECISION. THE CIC, HOWEVER, DIRECTED THE DISCLOSURE OF THE INFORMATION, HOLDING THAT THE EXEMPTION UNDER SECTION 8(1)(E) WAS NOT APPLICABLE IN THE PRESENT CASE.
Finding of the Court:
THE COURT HELD THAT THE NOTES ON FILES AND OPINIONS OF THE JAG BRANCH WERE INFORMATION WITHIN THE MEANING OF THE RTI ACT AND WERE NOT EXEMPT FROM DISCLOSURE UNDER SECTION 8(1)(E) OF THE ACT. THE COURT OBSERVED THAT THE EXEMPTION UNDER SECTION 8(1)(E) WAS NOT AN ABSOLUTE EXEMPTION AND THAT THE COMPETENT AUTHORITY COULD ALLOW ACCESS TO INFORMATION IF PUBLIC INTEREST IN DISCLOSURE OUTWEIGHED THE HARM TO THE PROTECTED INTERESTS. THE COURT FURTHER HELD THAT THE RELATIONSHIP BETWEEN THE OFFICERS WHO GENERATED THE NOTES AND OPINIONS AND THE INSTITUTION OF THE ARMY WAS NOT A FIDUCIARY RELATIONSHIP WITHIN THE MEANING OF SECTION 8(1)(E) OF THE RTI ACT.
Issues: WHETHER THE NOTES ON FILES AND OPINIONS OF THE JAG BRANCH WERE INFORMATION WITHIN THE MEANING OF THE RTI ACT.
Ratio Decidendi: THE COURT HELD THAT THE NOTES ON FILES AND OPINIONS OF THE JAG BRANCH WERE INFORMATION WITHIN THE MEANING OF THE RTI ACT AND WERE NOT EXEMPT FROM DISCLOSURE UNDER SECTION 8(1)(E) OF THE ACT. THE COURT OBSERVED THAT THE EXEMPTION UNDER SECTION 8(1)(E) WAS NOT AN ABSOLUTE EXEMPTION AND THAT THE COMPETENT AUTHORITY COULD ALLOW ACCESS TO INFORMATION IF PUBLIC INTEREST IN DISCLOSURE OUTWEIGHED THE HARM TO THE PROTECTED INTERESTS. THE COURT FURTHER HELD THAT THE RELATIONSHIP BETWEEN THE OFFICERS WHO GENERATED THE NOTES AND OPINIONS AND THE INSTITUTION OF THE ARMY WAS NOT A FIDUCIARY RELATIONSHIP WITHIN THE MEANING OF SECTION 8(1)(E) OF THE RTI ACT.
Final Decision: THE COURT DISMISSED THE WRIT PETITIONS AND UPHELD THE IMPUGNED ORDERS OF THE CIC. THE INFORMATION SOUGHT BY THE RESPONDENTS WAS DIRECTED TO BE SUPPLIED WITHIN TWO WEEKS FROM THE DATE OF THE JUDGMENT.
RAJIV SHAKDHER, J
1. The captioned writ petitions raises a common question of law, which is, whether the petitioners are obliged to furnish information to respondent which is retained with them in the record, in the form of file notings as also the opinion of the Judge Advocate General (in short JAG) found in records of the respondents, under the relevant provisions of the Right to Information Act, 2005 (in short the RTI Act).
1.1 In each of the matters, the Union of India (UOI) has been represented by Mr Rajeeve Mehra, ASG, while the respondents have appeared in person. Amongst the respondents, Col. V.K. Shad has appeared in person and made submission at each date, while the same cannot be said of the other two respondents, Col P.P. Singh and Brig. S. Sabharwal who have put in appearances occasionally. In particular, they were absent on the last two dates of hearing when matters were heard at length and the judgment was reserved in the matters. Nevertheless, it appears that, the said officers have adopted and are in sync, with the submissions made by Col. V.K. Shad.
1.2 The orders impugned in each of the captured writ petitions were those passed by the Central Information Commission (in short CIC). In WP(C) 499/2012, two orders are impugned. The principal order being order dated 15.06.2011, followed by a consequential order, dated 13.12.2011.
1.3 In WP(C) 1138/2012, there are, once again, two orders, which are impugned. The first order impugned is, the principal order, which is, dated 04.11.2011. This order follows the decision taken by the CIC in Col. V.K. Shad's case. The second order is dated 05.01.2012, which actually, only records, the fact that the matter had been concluded by the order dated 4.11.2011, and that the registry of the CIC had mistakenly relisted the matter. The order however, also goes on to record the fact that, a written representation was submitted on behalf of the petitioners herein that, they be given, thirty (30) days time to comply with the order of the CIC.
1.4 In the third and last writ petition being: WP(C) 1144/2012, the order impugned is dated 9.6.2011.
1.5 In each of these matters, the impugned orders have been passed by the same Chief Information Commissioner.
2. Though the question of law is common, for the sake of completeness, I propose to briefly touch upon the relevant facts involved in each of the matters, which led to institution of the instant writ petitions.
2.1 For the sake of convenience, however, each of the respondents in their respective writ petitions will be referred to by their name.
WP(C) NO. 499/2012
3. Col. V.K. Shad was posted to the Army Core Supply Battalion 5628 in September, 2008. Evidently, he fell out with his deputy, one, Lt. Col. B.S. Goraya. Col. V.K. Shad had issues with regard to Lt. Col. B.S. Goraya, which in his perception impacted the functioning in the unit. Lt. Col. B.S. Goraya, on his part made counter allegations against Col. V.K. Shad qua issues which he regarded as infractions of standard operating procedures governing the functioning of the personnel inducted into the army.
3.1 Consequently, in May, 2009, a Court of Inquiry was ordered by the Head Quarter, Western Command, to investigate, charges of alleged acts of indiscipline leveled by Col. V.K. Shad against Lt. Col. B.S. Goraya as also counter charges made by Lt. Col. B.S. Goraya against Col. V.K. Shad.
3.2 The inquiry against Col. V.K. Shad pertained to the following:
"(i) Failure to follow laid down procedure with respect to sale of BPL watches, as a non CSD item between October, 2008 and March, 2009.
(ii) Accepting money in Regt Fund Acct amounting to Rs 27,133/- (Rupees twenty seven thousand one hundred and thirty three only) as sponsorship from CSD Liquor Vendors between January and February 2009.
(iii) Improperly passed instructions to JC-664710W Nb Sub AR Ghose of 5682 ASC Bn, JCO in-Charge AWWA Venture Shop, to not to charge the profit of 5% on the sale of fruits and vegetables to
