F.No.CIC/AT/A/2006/00039 Dated the 1st June, 2006 Appellant: Shri Govind Jha, EE(SG), Jt. Dir (POL) E2W (PPC), E-in-Cs Branch Army HQs, Kashmir House, Room No. 145, Rajaji Marg, New Delhi- 110011. Respondents: Maj Gen. Gautam Dutt, DGW, E-in-Cs Branch Army HQs, Kashmir House, Room No. 145, Rajaji Marg, New Delhi-110011. Maj Gen. Gautam Banerjee, ADGW (Army), E-in-Cs Branch Army HQs, Kashmir House, Room No. 145, Rajaji Marg, New Delhi-110011. This appeal is by Shri Govind Jha against the order of the appellate authority, Maj Gen. Gautam Dutt, DGW, Engineer-in-Chiefs (E-in-C) Branch Army HQs, who had upheld the order of the CPIO, Maj Gen Gautam Banerjee, ADGW Army HQs. Brief facts of the case are as follows:-

2. The appellant, Shri Govind Jha, who is an employee of E-in-Cs Branch of the Army HQs filed a request for information dated the 28th November, 05 before the CPIO seeking disclosure of the following information:

2(a) Please show me the documents so that the reason for delaying the investigation not forwarding the case to MOD (sic) and leading to promoting officer can be evaluated by the proper authority. Further clearance giving for non involvement in any CVC/SPE (sic) cases has been issued in spite of CVC (sic) letter asking for investigation is important in the matter. (b) As per para 367 and 400 of RMES CWE/CE (sic) cannot be saved to issue show cause notice, please confirm that proper show cause notice have been issued to CWE/CE (sic) as per para quoted ibid. Suitable prior information was available to CVC (sic), MOD (sic), E-in-C for the act of omission/commission vide CVC (sic) letter No. VIG-97496/04-7234 dated 11.10.2005 based on my complaint. : 2 : If CE CC (sic) has left CE/CWE (sic) from show cause notice the reason for the same may be shown to me. Complaint have been made 2 years back where as action is still pending in spite of time limitation for the action taken based on my complaint in the time. Any action on the show cause notice has been taken or forwarded to MOD (sic) may be shown to me so that willful action of the Department to save the complainant can be evaluated. (c ) Copy of investigation and acceptance of the ordering authority may kindly be shown for my perusal and further necessary action and also reason for not associating me in the investigation to prove the complaint. (d) It is evident that the investigation has been willfully delayed and clearance has been given in spite of prior information, my complaint and CVC (sic) observation quoted above. The delay in progressing the case will lead to warranted action against the authority misusing their power. (e) No. S.O.P. (sic) has been issued by the E-in-C which should be available in the computer as per the act.

3. The appellant received a response (dated 29.12.2005) from the CPIO. The reply, referring to the paragraphs in the RTI petition of the appellant stated as follows:-

Para 2(a): The investigation report has been submitted to MOD(sic) for their decision in the case after obtaining statutory advice from the CVC. Since the evaluation of the investigation report is in progress at MOD(SIC) showing the investigation report and related documents to Shri Govind Jha, appellant, being the complainant himself, may not be desirable at this stage as it may impede the investigation process. The CPIO cited sub para 8(h) of para 7 of the RTI Act, 2005 in support of the above conclusion. Para 2(b): The CPIO informed to the appellant that Shri A.K. Bajaj has been served with show cause notice by the competent authority. Further action was pending. Para 2: The reply as to 2(a) above. Para 2(d): It is merely an observation by the appellant. Hence, did not merit a response.

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4. The appellant carried the matter in appeal to the appellate authority, Maj. Gen. Gautam Dutt, DGW, who in his order dated the 3rd March,06, decided as follows:-

1. Ref your letter No. 270501/90/6/2005/R-Info-Act/E-in-C dated 27 Jan 2006

2. Having gone though the complete case it has transpired that you have made the complaint direct to the CVC (sic). Currently, the case is under examination with the MOD (sic).

3. Therefore, it is considered necessary to obtain the opinion of CVC/MOD (sic) whether the investigation report (IR) can be supplied to you or not at this stage. Jt. DG (D&V) has accordingly been directed to do the needful. Final decision to supply the copy of IR to you will be taken after obtaining opinion of CVC/MOD (sic).

5. The parties were called for hearing on 1.6.06. The appellant was present, while the appellate authority and the CPIO were represented by Maj. Gen V.K. Negi, ADGW(A), and Shri L.M. Sarin, Offg. Jt. DG (D&V), E-in-Cs Branch, Army HQs, New Delhi.

6. It is seen from the records in this case, that on the basis of a complaint filed by the appellant, the competent authority in the E-in-Cs office Army HQ had initiated certain investigations on the directions of the CVC (sic). The investigation, apparently, has been completed and the report has been submitted to the Ministry of Defence, who in this case are the competent authority to take a decision. It is the contention of the CPIO and the appellate authority that the matter is still under examination by the Ministry of Defence and has not yet reached fruition. Mere submission of the report by the investigating officer cannot be construed as the completion of investigation. According to them, investigation is complete only when, based upon the investigation report, a decision is made by the authority competent to take such decision regarding whether to pursue further action in the matter. Any disclosure of the investigation report prior to a final decision would be premature and shall be injurious to the standing and the reputation of those whose actions and conduct might have been subject matter of enquiry.

7. The appellant countered this by arguing that once the investigating officer finalises the investigation report, the protection of Section 8(1)(h) ceases to be available. Now that the report by the investigating officer is ready, there is no bar under the provisions of the RTI Act to its disclosure. He holds that the decision of the competent authority in an investigation need not be awaited in order to disclose the report of that investigation. Such a disclosure cannot be described as premature disclosure. It is the : 4 : appellants view, that far from harming the investigation or compromising its objectivity disclosure of the investigation report creates conditions for more thorough examination of evidence. He complained that the investigation officer had given him no hearing, which he deserved being the complainant. If he were made privy to the investigation his input would have been highly useful to the investigation officer in arriving at his conclusions. Even now, if he is allowed to access the investigation report, he could point out to the decision making authority its deficiencies, if any, and thereby help improve the quality of decision. The appellant drew our attention to the preamble at the RTI Act which declares that the purpose of the Act was to combat corruption by bringing in transparency in governance. It is his plea that the information sought by him contributes to that end.

8. In examining this case, the critical point is whether the plea of continuing investigation taken by the appellate authority and the CPIO is a valid plea, which would have the support of the exemption under Section 8(1) (h) of the RTI Act. It is to be considered whether an investigation can be said to be over just because the officer entrusted with such investigation has completed his task and submitted the report to the competent authority. This will also mean that an investigation and a decision in that investigation are two separate stages and cannot be said to constitute a continuum.

9. While in criminal law, an investigation can be said to be completed with the filing of the charge sheet in an appropriate court by an investigating agency, in cases of vigilance related enquiries, misconduct and disciplinary matters, the investigation can be said to be over only when the competent authority makes a determination about the culpability or otherwise of the person or persons investigated against. In that sense, the word investigation used in Section 8(1)(h) of the Act should be construed rather broadly and should include all enquiries, verification of records, assessments and so on which may be ordered in specific cases. In all such matters, the enquiry or the investigation should be taken as completed only after the competent authority makes a prima-facie determination about presence or absence of guilt on receipt of the investigation/enquiry report, from the investigation/enquiry officer.

10. There is another aspect to this matter. If for the sake of argument, it is agreed that the report of investigation in any matter can be disclosed immediately after the officer investigating the cases concludes his investigation and prepares the report which, let us assume, impeaches the conduct of a given officer. In case the competent disciplinary authority agrees with the findings of the investigating officer, disclosure of the report even before a final decision by the competent authority, would be inconsequential. There shall be problem, however, if the disciplinary/appointing authority chooses to disagree with the findings of the investigating officer. Early disclosure of the investigation report in such a case, besides being against the norms of equity, would have caused irretrievable injury to the officer/persons (who would have been the subject of investigation) standing and reputation. His demoralisation would be thorough. : 5 :

11. In exempting from disclosure matters pertaining to an on-going investigation (Section 8 (1) (h) ), the RTI Act besides other reasons, also caters to the possible impact of the disclosure of such information on the public servants morale and their self-esteem. There are, thus, weighty reasons for such a provision in the exemption clauses of the RTI Act.

12. We are keenly aware that one of the purposes of the enactment of the RTI Act is to combat corruption by improving transparency in administration. This objective should be achieved without impairing the interest of the honest employee. Premature disclosure of investigation-related information has the potentiality to tar the employees reputation, permanently, which cannot be undone even by his eventual exoneration. The balance of advantage thus, lies in exempting investigations/enquiries in vigilance, misconduct or disciplinary cases, etc. from disclosure requirements under the Act, till a decision in a given case is reached by the competent authority. This also conforms to the letter and the spirit of Section 8 (1) (h) of the RTI Act.

13. There is one other factor that also needs some reflection. Disclosure of an investigation/enquiry report (as demanded in this case by the appellant) even before its acceptance/rejection by a given competent authority will expose that authority to competing pressures which may hamper cool reflection on the report and compromise objectivity of decision-making.

14. In our considered view, therefore, in investigations in vigilance related cases by CVOs or by departmental officers, as well as in all cases of misconduct, misdemeanour, etc., there should be an assumption of continuing investigation till, based on the findings of the report, a decision about the presence of a prima-facie case, is reached by a competent authority. This will, thus, bar any premature disclosure, including disclosure of the report prepared by the investigating officer, as in this case.

15. We, therefore, hold that the present case attracts the exemption under Section 8(1) (h) and, therefore, disclosure of information as asked for by the appellant, cannot be authorized. The appeal is rejected.

16. We, however, ask the disciplinary authority in the present case, i.e. the Ministry of Defence, to take a view within two months in respect of the findings in the investigation report so that the appellants right to access the investigation report can be reactivated without any unconscionable delay. Sd/- Sd/- (A.N. TIWARI) (PROF. M.M. ANSARI) INFORMATION COMMISSIONER INFORMATION COMMISSIONER : 6 : Authenticated by Sd/- (P. K. GERA) REGISTRAR Address of parties:

1. Shri Govind Jha, EE(SG), Jt. Dir (POL) E2W (PPC), E-in-Cs Branch Army HQs, Kashmir House, Room No. 145, Rajaji Marg, New Delhi-110011.

2. Maj Gen. Gautam Dutt, DGW, E-in-Cs Branch Army HQs, Kashmir House, Room No. 145, Rajaji Marg, New Delhi-110011.

3. Maj Gen. Gautam Banerjee, ADGW (Army), E-in-Cs Branch Army HQs, Kashmir House, Room No. 145, Rajaji Marg, New Delhi-110011.