According to the apex court, gratuity and pension are hard earned benefits of an employee and right to receive pension is in the nature of 'property'
The Supreme Court on Tuesday said right to receive pension could not be taken away pending departmental or criminal proceedings from a government employee.
The apex court observed that gratuity and pension are hard-earned benefits of an employee and right to receive pension is in the nature of 'property'.
A bench of justices KS Radhakrishnan and AK Sikri said, "This right to property cannot be taken away without the due process of law as per the provisions of Article 300 A of the Constitution of India".
"It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and un-blemished service. It is thus hard earned benefit which accrues to an employee and is in the nature of "property," the SC added.
The apex court also dismissed an appeal filed by Jharkhand government against the High Court order directing it to release the withheld dues of its retired employee Jitendra Kumar Srivastava, who had criminal cases pending against him.
"We are of the opinion that the right of the petitioner (Srivastava) to receive pension is property under Article 31(1) (of the Constitution) and by a mere executive order the State had no power to withhold the same," the SC said
"...The order dated 12 June 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1)of Constitution, and as such the writ petition under Article 32 is maintainable," the Bench said.
It also said "a person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.
Merely because documents seized during investigation have been submitted to the Court, it cannot be a ground for denial of information under the RTI Act, the CIC said. This is 158th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application
The Central Information Commission (CIC), while allowing an appeal, directed the Central Public Information Officer (CPIO) of Central Bureau of Investigation (CBI) to provide information after severing names and particulars of person. The CIC also asked the PIO to provide documents pertaining to seizures made by CBI during investigation that has been filed in the Court.
While giving this judgement on 4 July 2011, Shailesh Gandhi, the then Central Information Commissioner said, “Merely because certain search and seizures have been made on the directions given by the Court and the results of the same have been submitted to the said Court, that in itself cannot be a ground for denial of information under the Right to Information (RTI) Act. It must be clearly established that disclosure of such information has been expressly forbidden to be published by any Court of law or tribunal or may constitute a contempt of Court, as mandated under Section 8(1)(b) of the RTI Act.”
Delhi resident Anil Kumar Dhyani, on 16 March 2010, sought from the PIO information about documents, records and statement of witnesses recorded under Section 161, of the Criminal Procedure Code (CrPC) in CBI Case No RC-DAI-2002-A-0033. Here is the information he sought under the RTI Act...
Inspection of documents/ records/ statement of witnesses recorded under Section 161, Cr. P. C. in CBI Case No. RC-DAI-2002-A-0033:
(i) All the complete Original statements recorded u/s 161 Cr. P. C. by the Investigating Officer during investigation of those witnesses which are neither relied upon nor filed in the court along with the Charge Sheet by the CBI in above mentioned case.
(ii) All the complete Original files/ documents/ letters/ records/ seizure memos and acknowledgment receipts etc which were seized by the CBI during investigation but the same was not filed in the court along with the charge sheet by them.
(iii) Any other records/ files etc pertains to my case which was not filed by the CBI along with the charge sheet in the court and at present still lying in CBI custody.
The PIO refused to provide the information. In his reply, the PIO stated, ""In this connection it is intimated the case is under trial and the inspection of concerned files/ documents may impede the prosecution of the offenders. Exemption is claimed u/s 8(1)(h) of RTI Act, 2005 for denying the information sought."
Not satisfied with the PIO's reply, Dhyani, the applicant filed his first appeal. In the appeal he stated, "The PIO failed to consider the fact that when the Appellant had sought documents which were not relied upon by the CBI during the trial, then how it would impede the prosecution of offenders. The PIO also failed to consider the fact that the Appellant wanted to inspect all the records, which were lying with the CBI as the same had not even been filed in the court by them. Section 8(1)(h) of the RTI Act was not applicable."
In his order, the First Appellate Authority (FAA) said, "There is no reason for the CPIO to claim exemption u/s 8(1)(h) of the RTI Act for copies of statements, which have been recorded u/s 161 CrPC, but have not been relied upon in the court. Copies of these statements should be given to the appellant subject to Section 8(1)(g) of the RTI Act. The CPIO should reconsider in this light.
As regards the seizures made by CBI, the same would have been done on the warrants given by the court and the result of the search and seizure would also have been submitted in the court. The CPIO should consider supplying these documents after obtaining orders from the concerned court.
As regards other files/documents, etc. which are not relied upon in the court, the applicant may be given an opportunity to examine the same and thereupon copies which are required by the appellant be provided to him subject to provisions of the RTI Act."
Following the order from the FAA, the PIO sent revised reply to Dhyani, the appellant. The PIO stated...
"a) In this connection with respect to query (i), (ii) it is intimated that unrelied upon statements/ seizure memos will be supplied after the due permission of the Court.
b) With respect to query (iii) it is intimated that files/ documents which are not relied upon in the court can be inspected by you on any working day between 10:30am to 5pm with prior intimation."
In response to the PIO's reply, Dhyani vide letter dated 12 August 2010 intimated the PIO that he had inspected one file on 12 August 2010 and he required certified photocopies of all the documents mentioned in his letter.
The PIO, vide letter dated 13 September 2010, replied that the statements cannot be provided as the information provided in confidence to law enforcement agencies may endanger the safety of the person. Therefore, the information sought was denied claiming Section 8(1)(g) of the RTI Act. Information sought in Case Diary No22 dated 5 April 2004 and No23 dated 6 April 2004 (two pages), the PIO replied that the case was under trial and information was denied under Section 8(1)(g) of the RTI Act and the appellant was asked to move the Court for necessary information.
Dhyani again approached the FAA stating that the order of the Appellate Authority had not been complied with and the denial of information by the PIO on the basis of Section 8(1)(g) of the RTI Act was not correct.
The FAA, vide another order dated 3 November 2010 observed that the appellant had sought information on points 2(a) and (e) as mentioned in his letter dated 12 August 2010. The FAA noted that as regards point 2(a), the PIO rightly denied the information on the basis of Section 8(1)(g) of the RTI Act. As regards point 2(e), the FAA noted that there was clear law as per Section 173(2) of the CrPC that neither the accused nor any of his agents could call for case diary of a particular case. "Such denial of case diary by PIO was as per law. Moreover, the Commission in its decision dated 27 July 2010 in Appeal No CIC/WB/A/2009/000503 had ruled accordingly,' the FAA said.
Dhyani then approached the CIC with his second appeal.
During the hearing before Mr Gandhi, the then CIC, the PIO said in the instant matter prosecution was pending and hence he could not part with the information. "We cannot part with any information or documents or article without the permission of the Court obtained through due process of law. Whatsoever information, document, article obtained, ceased, collected during the investigation are being held by the agency on behalf of the court," the PIO stated.
The PIO also claimed exemption under Section 8(1)(g) of the RTI Act for documents not relied upon during the prosecution stating, "...the information provided in confidence to the law enforcement agencies may endanger the spirit of the process and the safety of the persons".
Dhyani, the appellant told the Bench that the FAA had not upheld the exemption claimed by the PIO under Section 8(1)(h) of the RTI Act and he was allowed to inspect all the documents. He also pointed out that the FAA had ordered that as regards the seizures made by CBI, since these would have been done on warrants given by the Court, the investigating agency should consider supplying these documents after obtaining orders from the concerned Court.
Dhyani also asked whether the PIO had approached the concerned Court as per the order of the FAA. The PIO stated that he had not approached any Court and that the order of the FAA meant the appellant would have to approach the Court.
Mr Gandhi asked the PIO, if the names of witnesses and informants were blanked out from the photocopies of records to be given to the appellant, could he still justify the exemption under Section 8(1)(g) if the RTI Act.
The PIO stated that if the names and addresses were blanked out, then he would not claim the exemption under Section 8(1)(g) of the RTI Act.
Dhyani, the appellant stated that he inspected only of some documents since the FAA had stated that order should be obtained from the concerned Court, which has not been done so far.
The PIO contended that the orders were required to be obtained by the appellant, whereas the appellant argued that the relevant order should be obtained by the PIO.
The PIO also relied on the judgment of the High Court of Delhi in Surendar Pal Singh v/s Union of India (WP (C) 16712/2006) and the decision of the Commission in Appeal No CIC/AT/A/2008/01238 dated 7 June 2010.
The Bench then reserved its order.
During the next hearing on 4 July 2011, the Bench said it perused the relevant papers including the decisions cited before it by the PIO at the hearing held on 8 June 2011. The Bench noted that post- inspection, the appellant has primarily sought information on points (a) and (e) in his letter dated 12 August 2010. The PIO has denied the same on the basis of Section 8(1)(g) of the RTI Act, which has been upheld by the FAA. The PIO has claimed exemption under Section 8(1)(g) of the RTI Act for documents not relied upon during the prosecution and stated that disclosure of the information sought would identify the source of information or assistance given in confidence for law enforcement purposes. However, at the hearing held before the Commission on 8 June 2011, the PIO stated that if the names and addresses were blanked out from the relevant records, then he would not claim the exemption under Section 8(1)(g) of the RTI Act.
Mr Gandhi, the then CIC, said the Bench was of the opinion that there is some merit in the contention raised by the PIO and disclosure of the information sought may attract Section 8(1)(g) of the RTI Act.
Section 10(1) of the RTI Act provides as follows:
"10. Severability.- (1) Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under the RTI Act and which can reasonably be severed from any part that contains exempt information."
Under Section 10 of the RTI Act, it is possible to severe certain portions of the information before disclosing it to an applicant to ensure that information that is exempt from disclosure under the RTI Act is not disclosed. "Therefore, this Commission has decided to apply Section 10 of the RTI Act to the information sought by the appellant on points (a) and (e) in his letter dated 12 August 2010. The PIO is directed to provide the complete information sought on points (a) and (e) of the appellant's letter dated 12 August 2010 after severing the names and other particulars of persons, the disclosure of which would endanger their life or physical safety or identify the source of information or assistance given in confidence for law enforcement or security purposes," Mr Gandhi said in his order.
Further, the FAA, in its order dated 6 July 2010, observed that as regards the seizures made by CBI, the same would have been done on the warrants given by the Court and the result of the search and seizure would also have been submitted in the Court. The FAA, therefore, ordered that the CPIO should consider supplying these documents after obtaining orders from the concerned Court.
The Bench noted that this information, however, has not been provided to the appellant till date. "It is established that information under the RTI Act can be denied only on the basis of Sections 8 and 9 of the RTI Act. However, in the instant case, information regarding seizures made by CBI has been denied (as noted by the FAA) on the basis that such seizures would have been done on the warrants issued by the Court and the result of such search and seizures would have been submitted to the Court and therefore, orders must be obtained from the concerned Court before furnishing such information," Mr Gandhi said.
He said, "The Bench does not agree with these observations of the FAA. Merely because certain search and seizures have been made on the directions given by the Court and the results of the same have been submitted to the said Court, that in itself cannot be a ground for denial of information under the RTI Act. In the present matter, the PIO has failed to establish how disclosure of this information would attract the exemption contained in Section 8(1)(b) of the RTI Act."
While allowing the appeal, the CIC directed the PIO to provide following information to Dhyani before 30 July 2011.
1. Information on points (a) and (e) in Appellant's letter dated 12/08/2010 after severing the names and other particulars of persons, the disclosure of which would endanger their life or physical safety or identify the source of information or assistance given in confidence for law enforcement or security purposes; and
2. Relevant documents/ records pertaining to seizures made by CBI during investigation, which have been filed in the Court
CENTRAL INFORMATION COMMISSION
Decision No. CIC/SM/A/2011/000300/SG/13252
Appeal No. CIC/SM/A/2011/000300/SG
Appellant : Anil Kumar Dhyani
Respondent : CPIO,
Block No- 4, 5- B, First Floor,
CBI Building, Lodhi Road,
New Delhi- 110003
According to an affidavit filed by the Uttar Pradesh government, during Durga Shakti Nagpal’s tenure there were 112 raids on sand mafias. And after her transfer it came down to just 22 and none of them conducted at the SDM level
Durga Shakti Nagpal, an officer of the Indian Administrative Services (IAS) from the Uttar Pradesh (UP) cadre was an efficient sub-divisional magistrate (SDM) who was taking on sand mafias in Gautam Buddh Nagar district, reveals a document submitted before the Allahabad High Court.
According to an affidavit filed by mining directorate of the UP government, during Nagpal’s tenure (6 September 2012 to 26 July 2013) 64 dumpers and 512 carriers used for sand transportation were seized, a total royalty of Rs1.36 crore was realised. Out of the total 112 raids during this period, Nagpal herself conducted five raids. Out of 18 first information reports (FIRs) registered, the SDM herself filed two FIRs against the sand mafias.
The affidavit was filed in response to a public-interest litigation (PIL) filed by social activist Dr Nutan Thakur before the Lucknow bench of the Allahabad HC, with regard to the controversial removal of Nagpal.
As per the affidavit filed by Jay Prakash, joint director at the mining directorate, after Nagpal’s transfer, only 22 raids were conducted in which 12 FIRs were registered. But none of these raids or FIRs was at the level of the SDM. In short, neither the new SDM conducted any raids nor did he join hands with the mining department. On its own, the mining department conducted three raids, while 19 were conducted by others, after the controversial transfer of Nagpal as SDM.
After hearing Dr Thakur’s counsel Asok Pande, the Bench of Chief Justice Shiva Kirti Singh and Justice DK Upadhyaya seemed completely dissatisfied with the state government’s response and asked for a detailed response from the UP government. The Bench also asked the provisions of law under which the FIRs were registered and what action had been taken so far in these FIRs.
The Bench enlarged the ambit of Dr Thakur’s PIL to the larger issue of illegal mining and directed it to be linked it with another PIL pending before the Court.
The PIL was filed by Dr Thakur to find out the details of the crackdown on the sand mining mafia during Nagpal’s tenure and immediately after. Ms Nagpal was in charge of the Gautam Buddh Nagar district between 6 September 2012 and 26 July 2013.
You can learn more about Dr Nutan Thakur, who is also a Right to Information activist and an advocate for transparency and governance, through various pieces written by Moneylife over here