Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066 File No.CIC/SM/A/2011/001771 Appellant Shri G.S. Sandhu Public Authority Union Public Service Commission. Dates of hearing 9th May, 20th June, 5th Nov. & 4th Dec; 2012. Date of decision 1st May, 2013 Facts :- Vide RTI application dated 26.4.2011, the appellant had sought the following information from the CPIO of UPSC :- Clarifications in respect of Advice given to government of Maharashtra in respect of Departmental Proceedings against Shri G.S. Sandhu w.r.t. UPSCs letter No. f-3/495/2001-S.I dated 23 September 2002 and F- 3/196/2003-S.I dated 20 October 2003 as detailed below :

(i) Specific reasons for recommending enhancement of the minor punishment of fine of Rs. 10,000/- decided upon by the State Government to the major punishment of reducing the pay to the lowest scale, along with copies of relevant file notings and any other material relevant thereto. Was the state governments decision at all considered ?

(ii) In your comments, on my submissions in respect of article XI in both your above letters you have ignored my submissions that during my tenure the outstandings of Rs. 5.11 crore as on 31 March 91 were well within the broad limits of Rs. 8 crore laid down by the Corporation and had come down from Rs. 8.62 crore in January 1991 (reference Article IX). Please give the reasons for disregarding this as also the grounds for holding me responsible for outstandings on 31 March 92 being Rs. 10.79 crores when my tenure had ended on 26 June 1991 even though you had acknowledged that all trade credit given during my tenure had been fully recovered. Also please give reasons for not taking note of my assertion that outstandings were not arrears but amounts due at future dates. Please make available to me a copy of the complete file notings on this article in the notes pertaining to both your above-mentioned letters.

(iii) In respect of article I and III the UPSC has made no comments on the distinction made by me between Trade Credit and Cash Credit for working Capital. Please give reasons why UPSC continue to treat

Trade Credit as Financial Credit along with all relevant file notings pertaining to Articles I and III.

(iv) I had earlier asked UPSC to give copies of entire file notings pertaining to the 12 Articles of Charges which was turned down by UPSC by its letter No. F.6/51/2009-SI dated 18 January 2010 stating that all relevant facts of the case were covered etc. in the advice letters. It is clear from my above queries that the advice of UPSC does not adequately cover my submissions. The above two are only indicative. Hence, I would request you again that complete file notings of the case be made available to me. It would be the transparent thing to do.

2. The CPIO had responded to it vide letter dated 23.5.2011 as follows :-

(i) The information sought under para (i) is primarily the comments/views/opinion of the CPIO, which cannot be treated as information as per Section 2(f) of the RTI Act, 2005. Further, the notings on the disciplinary cases file are basically part of the decision making process. It may contain or include information/opinion/views/facts not only about the case of the Member of Service, but also about other officers, other cases of department/offices, opinion etc. given in fiduciary capacity and in confidence. It may not be in larger public interest to disclose such information. Therefore, its divulsion is exempted under section 8(1) (e)&(j) of the rti act 2005.

(ii) The applicant is equating CPIO with Commission which is not correct. Further, the information sought under para (ii) is primarily the comments/views/opinion of the CPIO, which cannot be treated as information as per Section 2(f) of the RTI Act, 2005. The notings on the disciplinary cases file are basically part of the decision making process. It may contain or include information/opinion/views/facts not only about the case of the Member of Service, but also about other officers, other cases of department/offices, opinion etc. given in fiduciary capacity and in confidence. It may not be in larger public interest to disclose such information. Therefore, its divulsion is exempted under section 8(1) (e)&(j) of the rti act 2005.

(iii) The information sought under para (iii) is primarily the comments/views/opinion of the CPIO, which cannot be treated as information as per Section 2(f) of the RTI Act, 2005. Further, the notings on the disciplinary cases file are basically part of the decision making process. It may contain or include information/opinion/views/facts not only about the case of the Member of Service, but also about other officers, other cases of department/offices, opinion etc. given in fiduciary capacity and in confidence. It may not be in larger public interest to disclose such information. Therefore, its divulsion is exempted under section 8(1) (e)&(j) of the rti act 2005.

(iv) The notings on the disciplinary cases file are basically part of the decision making process. It may contain or include information/opinion/views/facts not only about the case of the Member of Service, but also about other officers, other cases of department/offices, opinion etc. given in fiduciary capacity and in confidence. It may not be in larger public interest to disclose such information. Therefore, its divulsion is exempted under section 8(1) (e)&(j) of the rti act 2005.

3. Aggrieved with the decision of CPIO, the appellant had filed the first appeal which was disposed of by the Appellate Authority vide order dated 11.7.2011. The operative part of the order of AA is extracted below :-

I have perused the records and carefully considered the matter in appeal, issues raised by the appellant and the comments of the CPIO thereon. In view of the position explained by CPIO, no direction to CPIO is called for in this case.

4. Aggrieved with the decision of the Appellate Authority, the appellant filed second appeal before this Commission vide memo dated 25.7.2011. The grounds adduced in the appeal memo are extracted herein-below :-

The first appellate authority could not have ignored the decision of the High Court cited by me merely on grounds that the Commission had decided to file a writ in the High Court as no stay has been obtained in the said case. Similarly, in the second case cited by me against which a stay is stated to having been obtained, there is no indication whether the stay was only in respect of that particular case or whether it had universal applicability of not supplying file notings. The fact is that in the said order of CIC as well as in the earlier order of CIC which was upheld by the High Court order mentioned above, it has been clearly stated that Disciplinary Proceedings are administrative in nature and once completed should, ordinarily, be disclosed. The CIC had also mentioned that based on its decisions that file notings must be disclosed, the Central Government had issued a circular advising all Departments accordingly. Thus, unless there is a blanket stay by the High Court against providing file notings, individual cases have to be examined on merits. The appellant would also like to rely upon the order of CIC dated 06.10.2008 in Appeal No. CIC/WB/A/2007/00576 DATED 25.5.2007 (Copy enclosed as Annexure-III) to drive home the point that, as propounded by the Supreme Court in its decision dated 12.5.2008 in the case of Dev Dutt vs- Union of India & Ors : Appeal(Civil) No. 7631 of 2002 and quoted extensively by CIC in the referred case, that natural justice requires fairness and transparency in Public Administration. The Supreme Court held in the quoted case, which dealt with supplying minutes of meetings of Promotion Committees and details of confidential records, that non-communication would be arbitrary and as such a violation of Article 14 of the Constitution. The decision also mentioned that when an Authority takes a decision which may have civil consequences and affects the rights of a person, the principle of natural justice would come into play.

The above principles laid down by Supreme Court would equally apply to supply of file notings and relevant information in disciplinary proceedings.

5. The matter was initially heard by the Chief Information Commissioner on 4.4.2012. The appellant was present before the Commission. The UPSC was represented by Shri S.K. Jha, Deputy Secretary(CPIO) and Shri Ganga Singh, Section Officer. In view of the legal complexities involved in the matter, the Chief Information Commissioner constituted a Full Bench consisting of the following :- Shri Satyananda Mishra, CIC; Smt. Annapurna Dixit, IC and Shri M.L. Sharma, IC.

6. The Full Bench heard the matter on 9th May, 20th June, 5th November, and 4th December, 2012. The appellant remained present before the Commission in the above hearings. The UPSC was represented by Adv. Naresh Kaushik in these hearings, accompanied by various officers of UPSC.

7. Before coming to the merits, it would be pertinent to give a brief background of the matter. The appellant herein is a retired IAS officer. He belongs to 1967 batch of Maharashtra Cadre. He was posted as Managing Director, Maharashtra Small Scale Industries Development Corporation(MISSIDC here-in-after) from 7.8.1989 to 27.6.1991. Departmental proceedings were initiated against him under the All India Services (Discipline & Appeals) Rules, 1969, for alleged acts of omission and commission on his part. Shri Amitabh Chandra, Joint MD, MSSIDC, was also jointly arraigned in the departmental proceedings along with the appellant. The main charge against the appellant and Shri Amitabh Chandra was that by their acts of omission and commission, they caused grave prejudice to the interest of MSSIDC by way of conferring undue benefits on M/s Metal Tube and Rolling Mills. In the disciplinary proceedings, the charges were held to be established against the appellant herein whereupon the Government of Mahrashtra recommended punishment of a fine of Rs. 10,000/- on the appellant herein to the Union Public Service Commission.

8. After due consideration of the matter, the UPSC, however, rendered the following advice to the Government of Maharashtra :-

As he as Managing Director and CEO of the Corporation has utterly failed to supervise the work of his subordinates and has blindly signed the proposals forwarded to him through Joint Director, without application of his mind, his pay may be reduced to the lowest stage till his superannuation; viz. 31.8.2003 with cumulative effect with the stipulation that he will not earn any increment during this period. They advise accordingly.

9. It may also be apt to mention that copy of the 33 page long advice rendered by the UPSC was supplied to the appellant from File No., F.3/495/2001-SI.

10. The real question before the Commission is whether the UPSC is mandated to provide copies of the entire file notings pertaining to the 12 articles of charge served upon the appellant herein.

11. Adv. Naresh Kaushik has filed a detailed written representation dated 18.12.2012 before the Commission. The submissions made therein are summarized hereinafter :-

(i) The file notings in disciplinary cases have been held to be exempt from disclosure under section 8(1)(g) and 8(1)(j) of the RTI Act for the evident reason that these notings disclose the names and designations of the persons who might have given adverse opinion therein and this consequently exposes their life to any possible danger or threat. He has relied upon this Commissions decision dated 3.10.2006 in Mohd. Zeeshan Ahmed Vs- UPSC (File No. CIC/MA/A/2006/00646). He has also relied on this Commissions decision dated 16.9.2009 in K.L. Guglani Vs- DG, Vigilance, Customs & Central Excise(Appeal No. CIC/AT/A/2009/00167) in this regard.

(ii) CIC had ordered disclosure of file noting in certain cases but the CIC order was stayed by the Delhi High Court in the following matters :- (a) UPSC vs- C.L. Sharma (WP(C) No. 13205/2009 Order dated 18.11.2009 (b) UPSC Vs- Rajesh Kumar (WP(C) No. 2674/2011 order dated 27.4.2011. (c) UPSC Vs- Tarsem Lal (WP(C) No. 4661/2011 order dated 7.7.2011.

(iii) He has also relied on the Division Bench decision dated 3.5.2011 of the Delhi High Court in LPA No. 418/2010 wherein the Bench quoted the response of UPSC as follows :-

4. The notings on the disciplinary cases files are basically part of decision making process. It may contain or include information/opinion/views/facts not only about the case of the charged officer but also about other officers, other cases, other departments/offices, opinions etc. given in fiduciary capacity or in confidence. The information or facts may also pertain to such other cases whose divulsion is exempted under section 8(1)(i) of RTI Act. It may not be in large public interest to disclose such information.

5. Further, it is intimated that the Notings in the case by the Secretariat Honble Members is an exercise undertaken by them which merely constitute inputs for consideration of the Commission for taking a final decision and inputs for consideration of the Commission for taking a final decision and approval. The same has already been communicated in the aforesaid letter dated 08.10.2003. Hence, it is not necessary to provide the copies of the said notings to you.

And in para 08 thereof, made the following observation :- Prima facie, whatsoever was to be supplied to the appellant has been supplied and the remaining which was denied has rightly been denied and the attempt is to keep a meritless appeal alive.

(iv) It is his further contention that even though the file notings are otherwise not necessarily exempt from disclosure, however, notings in the files of disciplinary matters/vigilance cases are exempt from disclosure under the RTI Act. It is also his contention that just because file notings have been held to be information under section 2(f) of the Act, it does not mean that all and every kind of file noting ought to be disclosed and cannot be refused despite sufficient reason being shown within the ambit of the Act.

(v) It is also his contention that file notings can also be refused on the ground of personal information and being held in fiduciary capacity under section 8(1)(e), 8(1)(h) and 8(1)(j). DECISION NOTICE AND REASONS

12. It is important to mention that in Shatmanyu Sharma Vs- UPSC (File No. CIC/SM/A/2012/000243), the appellant had sought copy of the file notings made by the UPSC in his case before tendering whatever advice. The UPSC had refused to disclose this information. The Bench of the Chief Information Commissioner, however, rejected the contention of the UPSC that disclosure of file notings would cause any danger to the personal safety of any of the officers of UPSC who might have recorded their views in the file and directed the CPIO to disclose the requested information. Paras 04 & 05 of the said order are extracted below :-

4. During the hearing, the appellant submitted that all that he wanted was the copy of the file noting made by the UPSC in this case before tendering whatever advice. The Respondents pointed out that this could not be disclosed as the UPSC held this information in a fiduciary capacity and also considered that the disclosure of the information would endanger the safety of the officers who had recorded their individual views in the file.

5. We have carefully considered the submissions made by the respondents. We find it difficult to accept their contentions. If they apprehend any threat or danger to the personal safety of any of their officers who have recorded their views in the file, they can always mask all references to those officers, such as their signature and any other marker before disclosing the file noting. We, therefore, direct the CPIO to provide to the appellant within 10 working days of receiving this order the photo copy of the relevant file noting after severing/masking all signatures of the officers including all other identity markers.

13. Earlier to that, in C.L. Sharma Vs- UPSC (Appeal No. CIC/WB/A/2008/00419), the Bench of Shri Wajahat Habibullah, the then Chief Information Commissioner, in his order dated 24.8.2009 had rejected the contention of the UPSC regarding non-disclosure of the file notings in a disciplinary proceedings. The CICs Bench took the view that the information sought was clearly information in regard to public activity and, hence, of public interest and had directed the UPSC to provide copies of file notings after applying the severability clause. The operative part of the order is extracted below :-

The contention of Shri R.K. Sinha in the argument that u/s 8(1)(j), it is not only the personal information which would amount to invasion of privacy that is exempt from disclosure, but also of such personal information which has no relationship to any public activity or interest. In this case, he submitted that the CPIO is not satisfied that the larger public interest justifies disclosure of such information. We find such a contention flawed. In the above sub-section of Sec. 8(1) what is key is that even information that is exempt from disclosure u/s 8(1)(j) may be disclosed, if the CPIO is satisfied that the larger public interest justifies such disclosure. This does not work in reverse to claim that because information is required that is personal to the applicant, the larger public interest justifies its non-disclosure. In this case the information sought is clearly information on public activity and hence of public interest, since it concerns noting on a file that is a public, not a personal document. The information sought in this case is, therefore, essentially quite different to that sought in the decision of this Commission quoted above, which for the above reasons cannot apply in this case. Under the circumstances, CPIO Deputy Secretary Services-I Branch, UPSC, is directed to provide the information sought with regard to noting after applying the principle of severability excluding all information other than that which concerns appellant Shri Sharma alone in providing the information sought.

14. It is pertinent to mention that a similar matter had come up before Justice S. Muralidhar of the Delhi High Court in UPSC Vs- Lalit Kumar and in decision dated April 05, 2011, the Bench had rejected the contention of UPSC regarding non-disclosure of file notings. The said order is extracted below :-

1. The grievance of the Petitioner Union Public Service Commission (UPSC) is that by the impugned order dated 12th January 2011, the Central Information Commission (CIC) had directed the UPSC to provide the Respondent photocopies of the relevant file notings concerning two disciplinary cases involving the Respondent ? after deleting the names and all other references to the individual officers/authorities concerned so that their identity remains concealed ?

2. The information sought by the Respondent concerns the file notings in two disciplinary cases involving himself. In the considered view of this Court, the CIC has rightly permitted disclosure by applying Section 10 of the Right to Information Act, 2005 by directing deletion of the names and all other references to the individual officers/authorities concerned. No prejudice can be said to be caused to the Petitioner by the said direction.

3. No ground is made out for interference with the impugned order dated 12th January 2011 of the CIC.

15. The matter went up to the Division Bench on appeal in UPSC Vs- Lalit Kumar (LPA 626/2011) but the Division Bench in decision dated 5th January, 2012, kept the legal issue open on the submission of the UPSC that the information seeker therein had not taken steps for seeking enforcement of the orders passed in his favour under the RTI Act and which were impugned in this appeal.

16. This clearly demonstrates that UPSC did not seriously press the matter before the Division Bench.

17. Now we come to the decision of another Division Bench of the Delhi High Court in LPA No. 418/2010 relied upon by UPSC. We would like to stress that the Division Bench did not decide the case on merits. It was a case of dismissal in default. In this context, it would be pertinent to refer to the observation made by another Bench of the Delhi High Court in UPSC Vs- R.K. Jain in WP(C) No. 1243/2011 in order dated 13th July, 2012, para 46 whereof is extracted below :-

46. The orders of the learned Single Judge and Division Bench of this Court in Ravinder Kumar (Supra) have no relevance for a variety of reasons. The order of the learned Single Judge, upholding the claim of exemption under Section 8(1)(j) raised by the public authority to the disclosure of note sheets containing opinions and advices rendered by officials in respect of departmental proceedings on the ground that the same was against public interest, had been made specifically in the facts and circumstances of that case. Further, the order of the Division Bench was an order dismissing an application for restoration of the LPA. It was not an order on merits. There was no decision on any legal proposition on merits rendered by the Court in the said order. Mere prima facie observations of the Division Bench do not constitute a binding precedent. The decisions in Ravinder Kumar (supra), therefore, do not even otherwise apply in the facts of the present case.

18. We may further add that in LPA No. 418/2010, in Lalit Kumar Vs- CIC, the Division Bench had extensively quoted from the response of the CPIO of UPSC (Ref : para 11(iii) above) and had concluded as follows :-

Prima facie, whatsoever was to be supplied to the appellant has been supplied and the remaining which was denied has rightly been denied and the attempt is to keep a meritless appeal alive.

19. A bare reading of the above observation would unfailingly indicate that this case was decided on its peculiar facts and not on merits, as observed by another Bench in a later decision adverted to above.

20. In view of the above discussion, we are in respectful agreement with the decisions of this Commission in Shatmanyu Sharma case and C.L. Sharma case. The appellant herein is seeking file notings about his own case. He is not seeking information about any third party. It has been the consistent view of this Commission in a catena of its decisions that file notings are disclosable to the information seekers unless they are non-disclosable under any specific provision of the RTI Act. We are unable to accept the contention of the UPSC that the requested information is covered under clause (j) of section 8(1). As held by the Bench of Shri Wajahat Habibullah, former CIC, the file notings are a public activity; they are not personal information. Hence, the contention of the UPSC has to be rejected. Another contention of the UPSC that file notings are barred from disclosure under section 8(1)(e) also has to be rejected on the same ground. If the file notings are held to be maintained by UPSC in a fiduciary relationship, then the very purpose of the RTI Act would be defeated in as much as all sundry notings by all Departments of the Government would be attempted to be covered under this clause. This does not seem to be in conformity with the legislative intent. Disclosure is the rule and non-disclosure an exemption, as held by the Delhi High Court in Bhagat Singh case. Information can be denied only under a specific provision of the Act. The provisions invoked by UPSC in denying information to the appellant, however, can not be upheld in the facts and circumstances of the case.

21. In sum, we are of the considered opinion that the file notings relating to the matter in hand are disclosable to the appellant. Even so, we give liberty to the UPSC to obliterate the names and designations of the officers of UPSC who made notings in the file(s) under section 10(1) of the RTI Act. We hope that on the supply of file notings, the queries raised by the appellant in the RTI application would stand answered.

22. This order may be complied with in 04 weeks. Order reserved and pronounced on 1st May, 2013. ( Annapurna Dixit ) ( M.L. Sharma ) Information Commissioner Information Commissioner ( Satyanand Mishra ) Chief Information Commissioner Authenticated True Copy. (Aakash Deep Chakravarti) Joint Secretary (Law) & Addl. Registrar Copy to:-

1) Shri G.S. Sandhu, C-1/1, Lodhi Garden, (Amrita Shergill Marg), New Delhi

110 003.

2) The Central Public Information officer, Union Public Service Commission, (Sangh Lok Seva Ayog), Dholpur House, Shahjahan Road, New Delhi 110

069.