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CENTRAL INFORMATION COMMISSION (Room No.315, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)

Prof. M. Sridhar Acharyulu (Madabhushi Sridhar)

Central Information Commissioner

CIC/RM/A/2014/004365-SA

A.M.Kalra v. PEC University of Technology

RTI filed on: 17.4.2014 PIO replied on: 12.5.2014

FAA Order on: 11.6.2014 SA filed on: 15.7.2014

Hearing on: 9.11.2016 Appellant: Absent

Public Authority: Mr. Sanjeev Kumar

Decided on: 14.2.2017

FACTS:

1. The Appellant sought information regarding punishment given to Mr. R.R.

Singh for submitting fake TA claims etc. PIO gave reply on 9.5.2014 stating that it

is personal information. The appellant approached the Commission. The appellant in

his RTI application has sought following information:

i. Copy of office order imposing punishment on Dr. R.R. Singh, Civil

Engineering Department on the charge of making bogus TA claims,

ii. Copy of office order vide which punishment of Dr. R.R. Singh, Civil

Engineering Department has been revoked

iii. Name and designation of the competent authority revoking the punishment.

iv. Copy of the relevant rules under which the punishment has been revoked.

2. The CPIO in his reply dated 21.04.14 stated that the information sought

under point 1 and 2 was personal information and exempted from disclosure under

section 8(1)(e) and (j) of the RTI Act and served no larger public interest. However,

while responding to points 3 and 4, he stated that the decision regarding revoking

of the punishment of Dr. R.R. Singh was taken in the 41st BOM meeting held on

19.09.2013 and 42nd meeting held on 19.12.2013. The FAA denied the information

sought under points 1 and 2 but asked the respondent authority to provide

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complete information under point 3 and 4. Mr. Sanjeev Kumar, CPIO via email

substantiated his argument for denial of information sought by citing the Delhi High

Court decision in Union Public Service Commission vs R.K. Jain (LPA

No.618/2012), which reiterates principle laid down by the Supreme Court in Girish

Ramchandra Deshpande (SLP (Civil) No. 27734 of 2012 (@ CC 14781/2012)

3. The appellant in his second appeal expressed the need for disclosure of

information citing three cases. K. Ravikumar vs Bangalore University and

Anr1, in which it was stated:

"10. Before concluding, I deem it proper to observe that in light of the policy of the Government on transparency and openness, the authorities cannot flatly deny any document on the ground of confidentiality or secret in such matters. Mere repetition of the words would not provide confidential/secret colour to a public document. Transparency and openness provide a right of information to a citizen for enforcing his constitutional right of judicial review in a Court of law. In the circumstances, I deem it proper to observe that the authorities normally have to provide the document sought by an individual if the said document has nexus with the judicial remedy in accordance with law."

Another case cited is the Canara Bank vs The Central Information2, in which it

was held;

"8. The next exemption claimed by the petitioner is on the ground that the information sought by the second respondent relates to personal information pertaining to the employees of the Bank, disclosure of which has no relationship with any public activity or interest of the Bank or its employees and it would cause unwarranted invasion of the privacy of those employees, details of whose transfers are requested for by the 2nd respondent. I am of opinion that if this contention on the basis of Section 8(1)(j) is upheld, it would in fact run counter to the very object of the Right to Information Act itself."

The third case relied upon by appellant is R. Rajagopal vs State of Tamilnadu3,

wherein it was laid down:

1 AIR 2005 Kant 21, ILR 2004 KAR 4733, 2004 (6) Kar LJ 47

2 AIR 2007 Ker 225

3 1995 AIR 264, 1994 SCC (6) 632

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"The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy."

4. As the order in first appeal referred to, Girish judgment like many CPIOs and

First Appellate Authorities to deny the information, the Commission felt it is

important to examine the precedential value of order of Supreme Court in Girish

Ramchandra Deshpande 4 , vis-a-vis other significant Judgments of Supreme

Court and High Courts on the subject having value as precedent and issues like

whether the information sought, complaints inquired and action taken against him

has any relation to public activity or interest. The law of personal information or

privacy of public servants vis-a-vis Right to Information Act is the central point in

Girish case. Section 8(1)(j) of RTI Act exempts the disclosure of information

which has no relationship to any public activity or interest, or which would

cause unwarranted invasion of the privacy of the individual unless larger

public interest justifies the disclosure of such information. Mr. Girish submitted on

27th August 2008 sought from Regional Provident Fund Commissioner (Ministry of

Labour, Government of India) following relating to another public servant. The

response of the public authority was:

a. Copy of appointment order of Shri A.B. Lute, is in 3 pages. You have sought the details of salary in respect of Shri A.B. Lute, which relates to personal information the disclosures of which has no relationship to any public activity or interest, it would cause unwarranted invasion of the privacy of individual hence denied as per the RTI provision under Section 8(1)(j) of the Act. Copy of order of granting Enforcement Officer Promotion details of salary to the post along with statutory and other deductions, the transfer orders, copies of memo, show cause notice, censure issued, copy of EPF (Staff & Conditions) Rules 1962 is in 60 pages, return of assets and liabilities, details of report of item wise and value wise details of gifts accepted, details of movable, immovable properties of Mr Lute were also denied on same ground

b. As to Point No.10: Mr. Lute is not claiming for TA/DA for attending the criminal case pending at JMFC, Akola.

c. As to Point No.11: Copy of Notification is in 2 numbers.

4 Girish Ramchandra Deshpande vs Central Information Commissioner & Ors, Special Leave Petition (Civil) No. 27734 of 2012, along with 14781/2012, rejected on 3 October, 2012, https://indiankanoon.org/doc/160205361/ by KS Radhakrishnan & Deepaj Mishra JJ (2012) 9 SCALE 700,

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d. As to Point No.12: Copy of certified true copy of charge sheet issued to Mr. Lute – The matter pertains with head Office, Mumbai. Your application is being forwarded to Head Office, Mumbai as per Section 6(3) of the RTI Act, 2005.

e. As to Point No.13: Certified True copy of complete enquiry proceedings initiated against Mr. Lute – denied under Section 8(1)(j).

f. As to Point No.14: denied u/s 8(1)(j). g. As to Point No.15: denied u/s 8(1)(j).`

5. Appellant approached the CIC, who ordered on 18th June 20095, said:

I have no hesitation in holding that this information also qualifies to be the ‘personal information’ as defined in clause (j) of Section 8(1) of the RTI Act and the appellant has not been able to convince the Commission that disclosure thereof is in larger public interest.”

6. Girish filed a writ petition6 which was dismissed by Single Judge of Bombay High

Court, Nagpur Bench. Then he filed Letters Patent Appeal 7 before the Division

Bench, Bombay High Court at Nagpur, which also was dismissed. Appellant filed

special leave petition before the Supreme Court. Apex court judges, Mr K S Radha

Krishnan and Dipak Misra, JJ dismissed the SLP October 3, 2012 saying:

13. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure/punishment etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.

14. 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.

5 CIC Decision in Girish R Deshpande v Ministry of Labour and Employment & EPFO, No 1989/IC(A)/2008, in

F.No.s CIC/MA/A/2007/00825,863, dated 21st February, 2008 6 Girish R Deshpande No.4221 of 2009 Bombay High Court, Nagpur Bench, Mr Justice B P. Dharmadhikari dated 16.2.2010. 7 Girish R Deshpande LPA No.358 of 2011 before the Division Bench of DD Sinha and AP Bhangale, JJ of Bombay

High Court at Nagpur on 21.12.2011.

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15. The petitioner in the instant case has not made a bona fide public interest in seeking information, the disclosure of such information would cause unwarranted invasion of privacy of the individual under Section 8(1)(j) of the RTI Act.

16. We are, therefore, of the view that the petitioner has not succeeded in establishing that the information sought for is for the larger public interest. That being the fact, we are not inclined to entertain this special leave petition. Hence, the same is dismissed.

7. In a different second appeal by Mr Manoj Arya, RTI Activist versus PIO Cabinet

Secretariat, Learned Commissioner Shri Satyanand Misra8, refused to provide the

copies of complaints and other related information about a public servant quoting

the Division Bench order of the Hon’ble Supreme Court in Girish. The Department

of Personnel and Training issued an Office Memorandum No. 11/2/2013-IR (Pt.) on

disclosure of personal information under RTI Act on 14th August 2013, quoting an

operative part of the order of the Supreme Court in Girish. The OM stated:

The Central Information Commission in one of its decisions has held that information about the complaints made against an officer of the Government and any possible action the authorities might have taken on those complaints, qualifies as personal information within the meaning of provision of Section 8(1)(j) of RTI Act, 2005.

8. The impact of this OM is tremendous and widespread among public authorities as

any request for information about assets/income, service book details, complaints

against public servant during service and action taken thereon are being refused.

With three orders of CIC issued by CIC Shri Satyananda Mishra (two before and one

after Girish), upheld by Bombay HC single judge bench, Division Bench at Nagpur

and it reached finality as the Supreme Court dismissed Special Leave Petition which

was well supported by the Office Memorandum from the nodal agency DoPT, its

natural that such information is totally denied by PIOs across the country.

9. SC order in Girish and Law of Precedent: The point to be noted is that the order

of the Supreme Court in Girish is that his SLP was dismissed, which means the

Supreme Court did not permit the appellant to file an appeal over the order of

division Bench of Bombay High Court. It is clear that there was no hearing of appeal

on merits. The Supreme Court was given discretionary powers under Article 136 to

8 CIC/SM/A/2013/000058, on 26.6.2013

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decide whether an appeal from order of the High Court could be taken up for

hearing. In its discretion it has decided to dismiss this SLP.

10. The SLP and the Law of Precedent: The Article 141 of Indian Constitution

says that the law declared by Supreme Court to be binding on all courts. “The law

declared by the Supreme Court shall be binding on all courts within the territory of

India”. This is the Constitutional source of law of precedent in India. In a 2006

landmark case State of Orissa & Ors. vs. M.D. Illyas 9 , the Supreme Court

explained that “a decision is a precedent on its own facts and that for a judgment to

be a precedent it must contain the three basic postulates. A finding of material

facts, direct and inferential, (an inferential finding of fact is the inference which the

Judge draws from the direct or perceptible facts); (ii) statements of the principles

of law applicable to the legal problems disclosed by the facts; and (iii) Judgment

based on the individual effect of the above.

11. Special Leave Petition and Discretion of Supreme Court: An appeal is

different from Special Leave Petition. The petition for special leave to appeal (SLP)

is filed before the Supreme Court under Article 136 of the Constitution. The

Supreme Court may accept or reject the same. Article 136 says: (1) Notwithstanding

anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to

appeal from any judgment, decree, determination, sentence or order in any cause or matter

passed or made by any Court or Tribunal in the territory of India. (2) Nothing in clause (1)

shall apply to any judgement, determination, sentence or order passed or made by any

Court or Tribunal constituted by or under any law relating to the Armed Forces.

12. This discretionary power of the Supreme Court is not subject to any

constitutional limitation, and is left entirely to the discretion of the Supreme Court.

It is a plenary jurisdiction in the matter of entertaining and hearing appeals by

granting special leave against any kind of the judgment or order made by the Court

or Tribunal in any case or matter and the jurisdiction can be exercised in spite of

other specific provision for appeal contained in the Constitution, Cr P C or other

statute. This jurisdiction of the apex court cannot be whittled down by any

9 State of Orissa & Ors. vs. M.D. Illyas, (2006) 1 S.C.C.275

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legislation subordinate to the Constitution, as held in Mahendra Saree Emporium

II vs. G.V. Srinivasa Murthy10. Conclusiveness or finality given by a statute to

any decision of a Court or Tribunal cannot deter the Supreme Court from exercising

this jurisdiction. When special leave is granted the issues raised only can be

contested and the entire case is not open at large. That is why the decision in SLP

cannot be said to have been heard on merits like that in appeals. No rules or

principles as to when such leave ought to be granted and when it ought to be

refused can be laid down, as each case would depend on its own peculiar facts.

Supreme Court observed:

..it is not possible to define the limitations on the exercise of the discretionary

jurisdiction vested in this Court by Art. 136…….. It being an exceptional and

overriding power, naturally, it has to be exercised sparingly and with caution and

only in special and extraordinary situations.11

13. The SLP cannot be granted generally, unless it is shown that exceptional and

special circumstances exist, that substantial and grave injustice has been done and

that the case in question presents features of sufficient gravity to warrant a review

of the decision appealed against.

14. The SLP and res judicata: In Delhi Administration vs. Madan Lal

Nangia12 it was held that if a SLP is summarily dismissed, this cannot prevent

other parties from filing a SLP against the same judgement. It is a settled law that

when the SLP is dismissed, whether by a speaking or non-speaking order whether

in limine or on contest, second SLP would not lie. However the statement cannot be

stretched and applied to hold that such an order attracts applicability of doctrine of

merger and excludes jurisdiction of the court or authority passing the order to

review the same.

15. In all cases of admission of the SLP the further decision on merits will follow

whereas in every case of dismissal there is no question of further decision or

proceedings from the Supreme Court and effectively the order of the lower Court/

10 Mahendra Saree Emporium II vs. G.V. Srinivasa Murthy (2005) 1 SCC 481 11 Dhakeswari Cotton Mills Ltd. vs. CIT West Bengal AIR 1955 SC 65 / (1954) 26 ITR 775 (SC) 12 Delhi Administration vs. Madan Lal Nangia [AIR 2003 SC 4672]

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authority which is challenged before the apex Court is affirmed and becomes final.

In such a situation the question whether the person/s aggrieved by the order of the

lower Court could agitate his grievance by way of an application for review or

rectification of mistakes apparent from record so as to persuade the lower authority

to modify its final order in the light of the application for rectification or review, to

the extent and in the manner found appropriate is still open for consideration. The

respondent often pleads that the order of the lower Court having been affirmed by

the Supreme Court it is no more open to the lower authority, after the dismissal of

the SLP to entertain any application and/or decide the same for the purpose of

review, revision or modification of the order which has been upheld by the Supreme

Court. The controversy is not free from doubt. The effect of dismissal of SLP by the

Supreme Court is that the order of the Supreme Court does not constitute res

judicata to deny the petitioner the right to agitate matters on merits before the

competent Court/Tribunal.

16. The Supreme Court in Indian Oil Corporation Ltd. vs. State of Bihar &

Ors13 has clarified that the dismissal of a special leave petition by the Supreme

Court by a nonspeaking order would not operate as res judicata. It said:

When the order passed by this Court was not a speaking one, it is not correct to assume that this Court had necessarily decided implicitly all the questions in relation to the merits of the award, which was under challenge before this Court in the special leave petition. A writ proceeding is a wholly different and distinct proceeding. Questions which can be said to have been decided by this Court expressly, implicitly or even constructively while dismissing the special leave petition cannot, of course, be reopened in a subsequent writ proceeding before the High Court. But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding, namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issues must have been decided by this Court at least by implication. It is not correct or safe to extend the principles of res judicata or constructive res judicata to such an extent so as to found it on mere guesswork.

17. If SLP is admitted, appeal follows that can lead to a decision on merits whereas

in every case of dismissal there will be no possibility of any proceedings in Supreme

Court and effectively the order of the lower Court/ authority remains final. The

13 Indian Oil Corporation Ltd. vs. State of Bihar & Ors. (1987) 167 ITR 897 (SC)

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order of the Supreme Court does not constitute res judicata to deny the petitioner

the right to agitate matters on merits before the competent Court/Tribunal.

18. Doctrine of merger & Law of Precedent: The apex court may dismiss the

appeal on any grounds, that would result in superseding the decision under appeal

attract doctrine of merger. But if same reason has prevailed with the Court for

refusing leave to appeal, the order would not have been an appellate order but only

an order refusing to grant the leave to appeal.

19. A petition for leave to appeal to the Supreme Court may be dismissed either

by a non-speaking order or by a speaking order. Speaking order explain the

reasons and non-speaking order could be a dismissal of SLP in limine (at

threshold), without assigning any reason. A non speaking order cannot be

considered as a declaration of law by the Supreme Court under Article 141 of the

Constitution for there is no law which has been declared.

20. Even if the order of dismissal was supported by reasons, still the Article 141

would not be attracted because the jurisdiction exercised was not an appellate

jurisdiction but just a discretionary jurisdiction in refusing to grant leave to appeal.

It neither lays down the law nor operate as res judicata, as stated by Patna High

Court (Full Bench) in Smt Tej Kumari v CIT14. In this case the Patna High Court

quoted V. M. Salgaocar & Bros. v. CIT (2000) 243 ITR 383 (SC), wherein the

Supreme Court considered the difference between dismissal of special leave petition

and civil appeal in limine. The Supreme Court observed:

Different considerations apply when a special leave petition under article 136 of the Constitution is simply dismissed by saying 'dismissed', and an appeal provided under article 136 is dismissed also with the words 'the appeal is dismissed'. In the former case it has been laid down by this court that when a special leave petition is dismissed this court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. But what the court means is that it does not consider it to be a fit case for exercise of its jurisdiction under article 136 of the Constitution. That certainly could not be so when an appeal is dismissed though by a non-speaking order. Here the doctrine of merger applies. In that case, the Supreme Court upholds the decision of the High Court or of the Tribunal from which the appeal is provided under clause (3) of article 133. This doctrine of merger does not apply in the case of dismissal of a special leave petition under article 136. When

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Smt Tej Kumari v CIT (2001) 247 ITR 210, https://indiankanoon.org/doc/580246/

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an appeal is dismissed the order of the High Court is merged with that of the Supreme Court.

21. The common law doctrine “doctrine of merger” is founded on principles of

propriety in the hierarchy of justice delivery system. The Supreme Court in

Kunhayammed and Ors v. State of Kerala and Anr15, said that the doctrine of

merger is not a universal doctrine with unlimited application. It will depend on the

nature of jurisdiction exercised by the superior forum and the content or subject-

matter of challenge laid or capable of being laid shall be determinative of the

applicability of merger. The superior jurisdiction should be capable of reversing,

modifying or affirming the order put in issue before it.

22. The Supreme Court may reverse, modify or affirm the judgment-decree or

order appealed against while exercising its appellate jurisdiction and not while

exercising the discretionary jurisdiction under Article 136 disposing petition for

special leave to appeal. The doctrine of merger can therefore be applied to the

former and not to the latter. The Hon’ble Supreme Court also observed in

Dhakeswari Cotton Mills16 that it is not possible to define the limitations on the

exercise of the discretionary jurisdiction vested in this Court by Article 136 of

Constitution of India. It being an exceptional and overriding power, naturally, it has

to be exercised sparingly and with caution and only in special and extraordinary

situations. No rules or principles as to when such leave ought to be granted and

when it ought to be refused can be laid down, as each case would depend on its

own peculiar facts. The Hon’ble Supreme Court in CIT vs. M/s. Vinay Cement

Ltd17. had dismissed the SLP, as it was not a fit case for grant of a SLP therefore

cannot be said to be the law decided on the subject and it was not a binding

precedent as per Article 141 of the Constitution of India. Further, in the case of

Hari Singh Etc v State Of Haryana, the Supreme Court said:18,

15 Kunhayammed and Ors v. State of Kerala and Anr [(2000) 6 SCC 359],

https://indiankanoon.org/doc/1940266/

16 Dhakeswar1 Cotton Mills Ltd vs Commissioner Of Income Tax,West Bengal, 1955 AIR 65, 1955 SCR (1)

941, Bench: Mahajan, Mehar Chand (Cj), Das, Sudhi Ranjan, Hasan, Ghulam, Bhagwati, Natwarlal H., Aiyyar, T.L. Venkatarama, JJ. https://indiankanoon.org/doc/1837602/ 17 CIT vs. M/s. Vinay Cement Ltd. SLP, [(2007) 213 CTR 268] 18 Hari Singh Etc v State Of Haryana, 1993 SCR (3) 61, 1993 SCC (3) 114

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The doctrine of precedent is not applicable to an order passed by this Court rejecting a Special Leave Petition. Any such order cannot be held to be stare decisis so that it is a binding on the Court. The mere rejection of the Special Leave Petition of co- accused persons cannot seal the fate of the appeals of the appellants which have been entertained after leave having been granted by this Court. The appellants to whom leave has been granted can urge all questions within the framework of Article 136 of the Constitution for consideration. By this Court and a relief to which such appellants may be entitled cannot be denied to them merely on the ground that a Special Leave Petition in respect of co-accused persons with more or less similar charges, evidence and convictions has already been rejected.

23. In Supreme Court Employees Welfare Association Vs. Union of India

and Another19 (1989), and Yogendra Narayan Chowdhury and Others Vs.

Union of India and Others20 (1996), both decisions by Two-Judges Benches,

Supreme Court has held that a non-speaking order of dismissal of a special leave

petition cannot lead to assumption that it had necessarily decided by implication the

correctness of the decision under challenge.

24. Referring above two cases, in Kunhayammed case the Supreme Court said:

We may refer to a recent decision, by Two-Judges Bench, of this Court in V.M. Salgaocar & Bros. Pvt. Ltd. Vs. Commissioner of Income Tax 2000 (3) Scale 240, holding that when a special leave petition is dismissed, this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. What the Court means is that it does not consider it to be a fit case for exercising its jurisdiction under Article 136 of the Constitution. That certainly could not be so when appeal is dismissed though by a non- speaking order. Here the doctrine of merger applies. In that case the Supreme Court upholds the decision of the High Court or of the Tribunal. This doctrine of merger does not apply in the case of dismissal of special leave petition under Article 136. When appeal is dismissed, order of the High Court is merged with that of the Supreme Court. We find ourselves in entire agreement with the law so stated. We are clear in our mind that an order dismissing a special leave petition, more so when it is by a non-speaking order, does not result in merger of the order impugned into the order of the Supreme Court.

A few decisions which apparently take a view to the contrary may now be noticed. In Sree Narayana Dharmasanghom Trust Vs. Swami Prakasananda and Others 1997 (6) SCC 78, it was held that a revisional order of the High Court against which a petition for special leave to appeal was dismissed in limine could not have been reviewed by the High Court subsequent to dismissal of S.L.P. by Supreme Court. This decision proceeds on the premises, as stated in para 6 of the order, that It is settled law that even the dismissal of special leave petition in limine operates as a final order between the parties. In our opinion, the order is final in the sense that once a special leave petition is dismissed, whether by a speaking or non- speaking order or whether in limine or on contest, second special leave petition would not lie. However,

19

1989 (4) SCC 187 20

1996 (7) SCC 1

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this statement cannot be stretched and applied to hold that such an order attracts applicability of doctrine of merger and excludes the jurisdiction of the Court or authority passing the order to review the same.

In State of Maharashtra and Anr. Vs. Prabhakar Bhikaji Ingle 1996 (3) SCC 463, the view taken by a Two-Judges Bench of this Court is that the dismissal of special leave petition without a speaking order does not constitute res judicata but the order dealt with in S.L.P., disposed of by a non-speaking order cannot be subjected to review by the Tribunal. In our opinion the law has been too broadly stated through the said observation. Learned Judges have been guided by the consideration of judicial discipline which, as we would shortly deal with, is a principle of great relevance and may be attracted in an appropriate case. But we find it difficult to subscribe to the view, as expressed in this decision, that dismissal of SLP without a speaking order amounts to confirmation by Supreme Court of the order against which leave was sought for and the order had stood merged in the order of Supreme Court.

On the point of dismissal of SLP by reasoned order, the Supreme Court in this case said:

Dismissal of SLP by speaking or reasoned order - no merger but Rule of discipline and Article 141 attracted. The efficacy of an order disposing of a special leave petition under Article 136 of the Constitution came up for the consideration of Constitution Bench in Penu Balakrishna Iyer and Ors. Vs. Ariya M. Ramaswami

Iyer and Ors. - AIR 1965 SC 165 in the context of revocation of a special leave once granted. This Court held that in a given case if the respondent brings to the notice of the Supreme Court facts which would justify the Court in revoking the leave earlier granted by it, the Supreme Court would in the interest of justice not hesitate to adopt that course. It was therefore held that no general rules could be laid down governing the exercise of wide powers conferred on this Court under Article 136 whether the jurisdiction of this Court under Article 136 should be exercised or not and if used, on what terms and conditions, is a matter depending on the facts of each case. If at the stage when special leave is granted the respondent- caveator appears and resists the grant of special leave and the ground urged in support of resisting the grant of special leave is rejected on merits resulting in grant of special leave then it would not be open to the respondent to raise the same point over again at the time of the final hearing of the appeal. However, if the respondent/caveator does not appear, or having appeared, does not raise a point, or even if he raised a point and the Court does not decide it before grant of special leave, the same point can be raised at the time of final hearing. There would be no technical bar of res

judicata. The Constitution Bench thus makes it clear that the order disposing of a special leave petition has finality of a limited nature extending only to the points expressly decided by it.

The underlying logic attaching efficacy to an order of the Supreme Court dismissing S.L.P. after hearing counsel for the parties is discernible from a recent three-Judges Bench decision of this Court in Abbai Maligai Partnership Firm & Anr. Vs. K. Santhakumaran & Ors. 1998 (7) SCC 386. In the matter of eviction proceeding initiated before the Rent Controller, the order passed therein was subjected to appeal and then revision before the High Court. Special leave petitions were preferred before the Supreme Court where the respondents were present on caveat. Both the sides were heard through the senior advocates representing them. The special leave petitions were dismissed. The High Court thereafter entertained review petitions

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which were highly belated and having condoned the delay reversed the orders made earlier in civil revision petitions. The orders in review were challenged by filing appeals under leave granted on special leave petitions. This Court observed that what was done by the learned single Judge was subversive of judicial discipline. The facts and circumstances of the case persuaded this Court to form an opinion that the tenants were indulging in vexatious litigations, abusing the process of the Court by approaching the High Court and the very entertainment of review petitions (after condoning a long delay of 221 days) and then reversing the earlier orders was an affront to the order of this Court. However the learned judges deciding the case have nowhere in the course of their judgment relied on doctrine of merger for taking the view they have done. A careful reading of this decision brings out the correct statement of law and fortifies us in taking the view as under.

A petition for leave to appeal to this Court may be dismissed by a non-speaking

order or by a speaking order. Whatever be the phraseology employed in the

order of dismissal, if it is a non-speaking order, i.e. it does not assign

reasons for dismissing the special leave petition, it would neither attract the

doctrine of merger so as to stand substituted in place of the order put in

issue before it nor would it be a declaration of law by the Supreme Court

under Article 141 of the Constitution for there is no law which has been

declared. If the order of dismissal be supported by reasons then also the

doctrine of merger would not be attracted because the jurisdiction

exercised was not an appellate jurisdiction but merely a discretionary

jurisdiction refusing to grant leave to appeal. We have already dealt with this

aspect earlier. Still the reasons stated by the Court would attract applicability

of Article 141 of the Constitution if there is a law declared by the Supreme Court

which obviously would be binding on all the courts and tribunals in India and

certainly the parties thereto. The statement contained in the order other than on

points of law would be binding on the parties and the court or tribunal, whose order

was under challenge on the principle of judicial discipline, this Court being the apex

court of the country. No court or tribunal or parties would have the liberty of taking

or canvassing any view contrary to the one expressed by this Court. The order of

Supreme Court would mean that it has declared the law and in that light the case

was considered not fit for grant of leave. The declaration of law will be governed by

Article 141 but still, the case not being one where leave was granted, the doctrine of

merger does not apply. The Court sometimes leaves the question of law open. Or it

sometimes briefly lays down the principle, may be, contrary to the one laid down by

the High Court and yet would dismiss the special leave petition. The reasons given

are intended for purposes of Article 141. This is so done because in the event of

merely dismissing the special leave petition, it is likely that an argument could be

14

advanced in the High Court that the Supreme Court has to be understood as not to

have differed in law with the High Court.

25. Finally in Kunhayammed the Supreme Court listed out following conclusions:

(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.

(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.

(iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.

(iv) An order refusing special leave to appeal may be a non speaking order or a speaking one. In either case it does not attract the doctrine of merger. If the Petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the Court was not made out. Therefore, neither the doctrine of merger nor Article 141 of the Constitution will apply to such a case.

(v) If the order refusing leave to appeal is a speaking order i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, Tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the

order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res

judicata in subsequent proceedings between the parties.

(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked, the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

(vii) On an appeal having been referred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction

15

of the High Court to entertain a review petition is lost thereafter as provided by sub rule(1) of Rule (1) of order 47 of the CPC. (Emphasis added)

26. This means that the order in Girish will bind on the points decided by it. But

the order of Bombay HC (DB) does not get merged with the order of Supreme Court

in Girish. The 2010 judgment is very significant in understanding how the dismissal

of SLP in Girish cannot be considered as binding precedent. The Supreme Court has

categorically reiterated in 201 case of Bhakra Beas Management Board v.

Krishan Kumar Vij and Anr.21, that mere dismissal of a special leave petition at a

preliminary stage does not constitute a binding precedent, and accordingly, any

order passed by the High Court placing reliance on earlier order, shall still be

challenged subsequently. By referring to the judgment in Kunhayammed case

authored by the most illustrious learned Judge (Hon’ble Mr. Justice R.C. Lahoti as

he then was) it was held:

In any case, the dismissal would remain a dismissal by a non-speaking order where

no reasons have been assigned and no law has been declared by the Supreme Court.

The dismissal is not of the appeal but of the special leave petition. Even if the

merits have been gone into, they are the merits of the special leave petition

only. In our opinion neither doctrine of merger nor Article 141 of the

Constitution is attracted to such an order.

27. Thus 2010 order of the Supreme Court made it clear that even if the dismissal

of SLP is on merits, it could be merits of dismissal of SLP only and it cannot be

equated with decision on merits in appeal, which only is regarded as precedent.

28. Whatever may be phraseology used in SC order in Girish, there is a need to

cull out what kind of law was declared. Before that we should list out the

substantive legal points which were either not brought to the notice of the Bombay

High Court or Supreme Court or not found mention in the order, which are as

follows:

a) The relationship of the information sought with the public activity or public

interest.

21 Bhakra Beas Management Board v. Krishan Kumar Vij and Anr., [(2010) 8 SCC 701]

16

b) The meaning of Section 8(1)(j) dealing with the disclosure of information

having public relationship or interest.

c) The proviso to Section 8(1) of RTI Act about the information that cannot be

denied to Parliament or legislature.

d) Section 8(2) of RTI Act, which talked about ‘comparable’ public interest.

e) Section 8(3) of RTI Act, which deals with disclosure of 20 year old

information without invoking exception under Section 8(1)(j).

f) The Ratio in R Rajagopal defining what is privacy and what is personal

information.

g) Ratio in PUCL v UoI on telephone tapping and the necessity of due

procedure to be followed.

h) Ratio in Maneka Gandhi regarding due procedure to be followed in

conducting search and seizure operations.

i) Ratio of Supreme Court orders in ADR v UoI and PUCL v UoI regarding

disclosure of information about assets/finances, education and criminal cases

of contesting candidates and subsequent amendment to RP Act codifying the

judicial precedent.

j) Plain meaning principles of statutory interpretation.

29. Thus mere dismissal of SLP cannot be said to be law declared under Article

141 and consequently may not be a binding precedent when all merits were not

thoroughly discussed. Assuming that the order is one where the two sides of the

case are discussed and the apex court agreed with one and dismissed SLP, still it

may not attract the doctrine of merger and become a precedent to be followed by

the lower courts and tribunals because what was heard was not appeal but special

permission to file an appeal. The Supreme Court may dismiss the SLP with one

word order or one sentence order or it might have discussed the facts, as that

happened in Girish. The Hon’ble bench of the SC in Girish discussed the facts in

five or six paragraphs and held the matter need not be heard in the appeal. The

mention and discussion of all facts and legal aspects give character of ‘speaking

order’ to it. But the merits or facts discussed are only limited to the extent of

allowing or refusing the ‘special leave’, then, it does not mean that all the facts –

17

whether questions of law, of fact or mixed questions of law and fact were heard,

discussed and decided for the purpose of laying down law on those questions.

Though facts were discussed and decided in Girish that was limited to dismissal of

SLP and cannot be considered as ratio of rejecting a full-fledged appeal establishing

a law contrary to the expressed will of Parliament as found in enactment such as

RTI Act.

The plain meaning of RTI provisions:

30. The established principles of statutory interpretation mandate to take the plain

meaning of words used in enactment. In Nelson Motis vs. Union of India, it was

held that when the words of a statute are clear, plain or unambiguous, i.e., they

are reasonably susceptible to only one meaning; the courts are bound to give effect

to that meaning irrespective of its consequences.22 When a language is plain and

unambiguous and admits only one meaning no question of construction of statute

arises, for the Act speaks for court.23

31. It may look somewhat paradoxical that plain meaning rule is not plain and

requires some explanation. The rule, that plain words require no construction,

starts with the premise that the words are plain, which is itself a conclusion reached

after constructing the words. It is not possible to decide whether certain words are

plain or ambiguous unless they are studied in their context and construed.24

32. Three Plain Rules of RTI Act, 2005

a. Information which relates to personal information the disclosure of

which has no relationship to any public activity or interest, or which

would cause unwarranted invasion of the privacy of the individual

[Section 8(1)(j)]

When Section 8(1)(j) of the RTI Act, 2005 so unambiguously clear when it stated

that if the matter of disclosure relates to public activity and interest, it can be

22 Nelson Motis v Union of India, AIR 1992 SC 1981, p. 1984 23 A.W Meads v Emperor, AIR 1945 FC 21, p.23 75 IA 185; Pakala Narayan Swami v Emperor, AIR 1939 PC 47,pp.51, 52 24 Dr. Saibaba v Bar Council of India, AIR 2003 SC 2502

18

disclosed, how can court draw a different meaning? If the complaints or disciplinary

action details of a public servant are concerning the public duty or functions or

responsibilities in the public organization or Government department, it has

relationship with the public activity and also public interest. The PIO cannot deny

the disclosure if it causes any invasion of privacy, if so, whether it was warranted

invasion?

b. Provided that the information, which cannot be denied to the

Parliament or a State Legislature, shall not be denied to any person.

Second plain provision, which says all that information that could be given to the

legislator, shall be accessible to the citizen. To give effect to this provision, one has

to examine whether the information sought, i.e., complaints, memos, disciplinary

action reports etc could be given to legislator and discussed in the legislative house.

If answer is yes, it has to be given to the citizen also.

c. Subject to the provisions of clauses (a), (c) and (i) of sub-section

(1), any information relating to any occurrence, event or matter

which has taken place, occurred or happened twenty years before

the date on which any request is made under section 6 shall be

provided to any person making a request under that section:

33. This means if the information sought i.e., complaints, memos, disciplinary

action reports etc, is 20 years old, as per this proviso, it is subject only to three

exceptions mentioned in (a), (c) and (i). It is not subject to exception 8(1)(j) at all.

All these three statutory expressions are unambiguous and obvious, which do not

give rise to more than one meaning, hence the intention of the Parliament to get

this information to the citizen cannot be altered by court of law. A study of contents

of the judgments in Girish shows that these points were neither raised nor

answered. Thus on facts and law, the information sought cannot be straight away

denied.

34. The order of Division Bench of Bombay High Court remains an order at that

stage only and cannot be merged into the order of dismissal of SLP by the Supreme

19

Court. Because this was speaking order on facts relevant to the extent of deciding

SLP, it will operate as res judicata and prevents Girish to file another SLP, if

anybody files SLP in similar circumstances the order of SC in Girish might operate

as a precedent. A non speaking order of dismissal of SLP will not operate as res

judicata, while the speaking order might. Speaking order dismissing SLP in Girish

case operates as res judicata and precedent to prevent further filing of SLP in this

and similar cases, not as a general precedent upholding what was held by Bombay

High Court, from where SLP was sought but denied. It does not mean that the

order of DB of Bombay High Court was totally approved by the Supreme Court,

because there was no merger, as doctrine of merger cannot be invoked in this case.

Thus Bombay High Court order on Girish is not merged with the judgment of the

Supreme Court in dismissal of SLP.

35. Binding nature of HC order in Girish: After concluding that the SC order in

Girish cannot be a binding precedent, what will be the law on the points of asset

statements, service records, complaints and action related information about the

public servant? Whether Bombay High Court order will operate as precedent on the

subject? This division bench order of Bombay High Court cannot replace the

precedential value of various judgments of the Supreme Court whose ratio

decidendi is discussed below.

36. Girish and the Ratio in Rajagopal: Main contention of the public authority

and respondent in Girish case was that the information was personal to the public

servant, unrelated to public activity and its disclosure would cause unwarranted

invasion of his privacy. Expressions ‘privacy’ and ‘personal’ were defined and

explained by the division bench of the Supreme Court consisting of B P Jeevan

Reddy, S C Sen, JJ in R Rajgopal v State of Tamilnadu25. The Supreme Court

was required to balance the right of privacy against the right to free speech in this

case, where the petitioner was a Tamil newsmagazine which had sought directions

from the Court to restrain the respondent State of Tamil Nadu and its officers to not

interfere in the publication of the autobiography of a death row convict–‘Auto

25 R Rajgopal v State of Tamilnadu [(1996) 6 SCC 632]

20

Shankar’ which contained details about the nexus between criminals and police

officers. The Supreme Court framed the questions in these terms: “Whether a

citizen of this country can prevent another person from writing his life story or

biography? Does such unauthorised writing infringe the citizen's right to privacy?

Whether the freedom of press guaranteed by Article 19(1)(a) entitles the press to

publish such unauthorised account of a citizen's life and activities and if so to what

extent and in what circumstances?” While answering the above questions, a bench

of two judges of the Supreme Court, for the first time, directly linked the right to

privacy to Article 21 of the Constitution but at the same time excluded matters of

public record from being protected under this ‘Right to Privacy’. After analysing

Supreme Court orders and some American decisions the Bench the Supreme Court

held in Paragraph 9:

Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child-rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty.

Then the Supreme Court summarized the law based on decisions in

paragraph 26 of Rajgopal:

(1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Art. 21. It is a "right to be let alone." A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. (2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including Court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency (Article 19(2)) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap,

21

abduction or a like offence should not further be subjected to the indignity of her name and the incident being published in press/ media. (3) There is yet another exception to the Rule in (1) above – indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties.”

Part 1 of the above order has an exception in Part 2. The information that

formed part of public record or court record does not give rise to any privacy,

except in cases of female victims of sexual crimes where her name shall not

be revealed. This was not on the question of privacy but because there is a

need to secure the victim and prevent further victimization by the society.

37. Question is what is public record? Public record as defined in the Public

Records Act is any record held by any Government office. The Rajgopal order is

clear as to the areas of privacy – such as his family, marriage, procreation,

motherhood, child bearing and education among other matters. Issuance of

memos, initiating disciplinary action or imposing penalty does not fall in any of

these categories and thus it cannot be said to be the personal or private

information of the employee. Point 3 says that the acts and conduct relevant of

public servant to discharge of their official duties cannot be treated as private

information.

38. What is Personal? Conflict with Section 8 of RTI Act: The Supreme Court

categorically stated that Point 3 was not just an exception to Point 1 but an

independent rule by itself. This rule is similar to Section 8(1)(j) of RTI Act, which

says the information which is related to public activity is not private information.

The order in Girish is contrary to both express provision of law and well laid down

ratio by the apex court in division bench. The order in Girish does not even

mention R Rajgopal’s proposition and there was neither any analysis nor its

overruling. When compared and analysed, the ratio in Rajgopal was in full-fledged

writ appeal which was heard on merits was not over ruled by the order of dismissal

of SLP in Girish. The ratio decidendi in Rajgopal is in tune with Section 8(1)(j)

22

while dismissal of SLP in Girish is in conflict with that express provision of the law.

The Girish order does not explain why the provision of RTI Act is not the law and

by what rule of interpretation the new principle that employee related information is

personal information has been evolved? Without over ruling the ratio in

Rajagopal, it is not jurisprudentially possible to establish a different principle of

law, that too in conflict with express provision of law. As it was not writ appeal

there was no opportunity to bring the ratio in Rajagopal to the notice of the

Division Bench of Supreme Court. Another vital point is that the memos, complaints

or disciplinary action related information is not unconnected with public activity,

which was also not discussed in the order. It might have happened because it was

not a full writ appeal but a hearing on SLP only.

39. Privacy of Assets Information of public servants: The assets and

properties owned by a person, spouse and children could be private information of

the public servant because this is in his personal domain as per Point 1, but when

contrasted with Point 3 of Rajagopal ratio assets related information is not

personal. The public servant is not expected to misappropriate the public money,

with which he will be dealing in his day-to-day operations. In such background, the

property he and his family members earned could be revealed. This became the law

because of judicial pronouncements and also amendment to the Representation of

People’s Act, and passing of Lokpal Act by the Parliament. The disciplinary action

or complaints against a public servant, cannot fall under the categories of private

domain such as family, marriage, procreation, motherhood, child bearing and

education. Compared to an order of division bench of Supreme Court in dismissal

of SLP in Girish under Article 136, the decision of the division bench in Writ Appeal

in R Rajgopal under Article 141 has binding value as declaration of law. The

information sought under Girish cannot primarily be considered as personal. Even

if assumed as personal, the public relation, invasion of privacy, public interest

factors make that information to be shared because of Section 8(1)(j) of RTI Act.

40. This question was dealt by the Delhi High Court through single and division

benches, in Secretary General Supreme Court of India v Subhash Chandra

23

Agrawal 26 . The Delhi High Court opined that such information could not be

regarded as personal information and could be disclosed27 . Later, some of the

judges of Supreme Court and High Courts started voluntarily declaring their assets

on the websites. This order is appealed to the Supreme Court by the Secretary

General of Supreme Court, which is awaiting the hearing.

41. A Division Bench of Bombay High Court in the case of Surup Singh Naik Vs.

State of Maharashtra28 held in the said case that the information which cannot

be denied to the Parliament or the State Legislature cannot be denied to the citizen.

The proviso at the end of Section 8(1) of RTI Act perhaps was not brought before

Bombay HC (DB) in Girish case. Thus the Bombay HC(DB) in Surup Singh Naik

sets off the precedent of Bombay HC(DB) in Girish to the extent of applicability of

Proviso to Section 8(1) of RTI Act, and the public nature of conduct of public

servant necessitating disclosure of information sought.

42. Law on privacy of assets statements: It is necessary to refer to express

provisions of enactments which are ignored by courts in Girish. The Parliament

considered the question of assets statement of public servants and passed Lokpal

Act. Thus the law is consolidated and settled on the aspect of assets statement of

public servants is aspect. The Representation of People’s Act 1951, and the

judgments of the Supreme Court emphatically declared that the voters have right

to information about the asset statements of the contesting candidates, who are

under a mandatory statutory duty to file affidavits at the time of filing nomination

and every year after getting elected. These statements are available both under S 3

and S 4, i.e., they are proactively disclosed and also shared if a citizen demands

under RTI Act. Union of India v ADR 2002, and UoI v PUCL 2003 Union of

India v PUCL29 reiterated this right of the voters. While RP Act 1951 consolidated

this right into a legal provision through amendment, the Lokpal Act 2013 extended

26 Secretary General, Supreme Court of India v. Subhash Chandra Agrawal, LPA 501/2009 in full bench (led by Chief Justice Vikramjit Sen, Justice AP Shah and Justice S Muralidhar) https://indiankanoon.org/doc/1342199/ 27 Secretary General, Supreme Court of India v. Subhash Chandra Agrawal, LPA 501/2009 in full bench (led by Chief Justice Vikramjit Sen, Justice AP Shah and Justice S Muralidhar) https://indiankanoon.org/doc/1342199/ 28 Surup Singh Hriya Nayak v State of Maharastra, AIR 2007 Bom 121. 29 Union of India v PUCL, [(2003) 4 SCC 399],

24

it to every public servant30. Earlier in 2011 in DP Jangra vs State Information

Commission, Haryana 31, the Punjab and Haryana High Court held that the assets

of a public servant were a matter of public interest and cannot, therefore, be

exempted under section 8(1)(j). In the same year, in Om Prakash v State of

Uttarakhand32, the Uttarakhand High Court held that as details about a public

servant’s assets were required by law to be submitted to the government, and as

the public servant would own these by means of his earning as a public servant, it

cannot be held that the details of his assets are private or that their disclosure has

no relationship to any public activity or interest.

43. Law of privacy under Lokpal Act: Recognising the need for probity, the

recently passed Lokpal & Lokayuktas Act, 201333 requiring all public servants to

declare their assets. The law also contained the further provision that all these

declarations would then be put on the web so that they could be publicly accessed.

The Department of Personnel and Training (DoPT) under the Central Government

has issued an Office Memorandum34 to all ministries and departments inviting their

attention to Chapter XIII of the Lokpal Act. They have circulated draft templates for

declaration of the assets and liabilities of every public servant along with extracts of

the Lokpal Act (2nd attachment). Ministries and departments are required to send

their comments by 4th April, 2014. Some of the spouses of public servants

challenged Section 44(2) and (6) the Lokpal Act, 2013 which stipulated for

publication of their assets in a case Vinita Singla vs Union of India35 wherein the

Division Bench of Delhi High Court held their assets information was private. They

confirmed that public servant’s assets information was not private. With this

background of law and judgments of Delhi High Court, the judgment in Girish case

30 Adjudicating RTI, RaaG Study Report, 2017, page 144 31 DP Jangra v State Information Commission, Haryana, Writ Petition No.15964 of 2010 High Court of Panjab and Haryana, decided on 6.1.2011, by Justice Mehinder Singh Sullar 32 Om Prakash v State of Uttarakhand, Uttarakhand High Court at Nainital in WP 166 of 2012, by Justice Prafulla C Pant, on 26th March 2012, https://indiankanoon.org/doc/70904591/ 33 Gazette Notification No. 344 dated, the 15th February, 2014 by MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS New Delhi DoPT says: Whereas the Lokpal and Lokayuktas Act, 2013 (1 of 2014) (hereinafter referred to as the said Act) came into force on the 16th day of January, 2014; 34http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02est/11013_3_2014-Estt.A-20032014.pdf 35 Vinita Singla vs Union of India WP (c) 6010/2014 and CM No 14657/2014 the Bench of Justice S Ravindra Bhatt and Justice Vipin Sanghi decided on 9.9.2014.

25

by Bombay High Court Division Bench is no more effective. The information of

assets statements is no more a non-disclosable information and also not personal

information of that particular public servant especially when sought under RTI Act.

44. In 2012, a Group of Experts on Privacy prepared a report for Planning

Commission, under the chairmanship of Justice A P Shah, former Chief Justice of

Delhi High Court. This group submitted a comprehensive report examining the

evolution of right to privacy as a fundamental right where in these significant

judgments were discussed.

45. Is domestic enquiry ‘personal’? : In Girish, the Bombay High Court opined

that the copies of all memos issued to a public servant, show cause notices and

orders of censure/punishment etc are qualified to be personal information under of

Section 8(1)(j) of the RTI Act. Division Bench of the Kerala High Court in Centre

for Earth Sciences Studies v. Anson Sebastian36. In that case, the Court opined

that disclosure of information regarding domestic enquiry against a public servant

was not prohibited under Section 8(1)(j) of the RTI Act. This order of Kerala HC

(DB) sets off the Bombay HC (DB) order in Girish to the extent that disclosure of

information about domestic inquiry.

46. Delhi HC on public nature of disciplinary action in UPSC v RK Jain: Mr.R

K Jain sought information from UPSC, about disciplinary action against a public

servant which was denied. The CIC allowed the information to be disclosed. The

UPSC filed writ petition before the Delhi High Court. The single member Bench of

Justice Vipin Sanghi confirmed the order of CIC. The UPSC filed a Letters Patent

Appeal and the Division Bench of the Delhi High Court in Union Public Service

Commission v R K Jain37 by Chief Justice and Justice Rajiv Sahai Endlaw, on 6th

November 2012 has reversed this in LPA citing order of SC in Girish.

36 Centre for Earth Sciences Studies v Anson Sebastian, 2010 (2) KLT 233 Kerala High Court Division Bench. 37 Union Public Service Commission v R K Jain (LPA 618 of 2012) https://indiankanoon.org/doc/15738113/

26

47. Right to Know the conduct of public servant: Bombay HC case: Bombay

High Court in Shetye v Dinesh Vaghela38, explained right to know about working

of public servant.

48. Right to Know the transaction of public servant: Raj Narain Case: The

apex court referred to its own decision in State of Uttar Pradesh v Raj Narain

and others 39 , wherein the Constitution Bench considered a question -whether

privilege can be claimed by the Government of Uttar Pradesh under Section 123 of

the Evidence Act in respect of what has been described for the sake of brevity to be

the Blue Book summoned from the Government of Uttar Pradesh and certain

documents summoned from the Superintendent of Police, Rae Bareli, Uttar

Pradesh? The Court observed that "the right to know which is derived from the

concept of freedom of speech, though not absolute, is a factor which should make

one wary, when secrecy is claimed for transactions which can, at any rate, have no

repercussion on public security.

49. Information of Public Servant and Public Activity: Relation with public

activity or interest & Employer-Employee relationship in public sector. An important

aspect to be discussed is the nature relationship between the Government and its

servants. There are three pertinent questions: a) Is it the same as that of an

employer and employee in private sector? b) Whether state being an employer and

activities of its employee concerns with the public administration, governance,

exercising power of state and obligation to perform Constitutional duties make any

difference? c) Whether the employer in the context of Government, include ‘we, the

people’? Answers to these questions could be: a) No, it is the same. b) Yes, it

makes a huge difference. State is not a profit making business or commerce. The

employees are public servants and public in general are the real master

(employer)? c) Yes, they have to serve the interests of the people, who gave the

Constitution to this nation.

50. The state being the employer and Government having a legal duty to perform

according to Constitution and Rule of Law, not just by the contract of employment

38

Shetye v Dinesh Vaghela, (WP No.1 of 2009), by Bombay High Court Justice C.L. Pangarkar, dated 20.01.2009 39

State of Uttar Pradesh v Raj Narain (1975) 4 SCC 428)

27

between the employer state and the public servant, the activity of the employee is

in direct relation with the public. It is in this context we need to examine the

application of Section 8(1)(j) to the request for information regarding complaints

filed and action taken against the public servant. Before using this proviso to deny

such information the authorities under RTI Act and Honourable Constitutional

Courts need to keep in mind that their activity itself is public activity and their

performance affects the public in either way- good or bad.

51. Conduct or misconduct of public servants & RTI Act:

Definition of "information" under Section 2(f) means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “record” includes “any document, manuscript and file.....”

Memo issued to public servant for misconduct or any other reason is part of

‘information’ as per Section 2(f). The disciplinary proceedings taken up

against the public servant, if resulted in report, i.e., ‘information’, and the

entire file containing the proceedings is the ‘record’. It is subject to Section

8, of course.

52. Section 4(1)(b) mandates the disclosure of various categories of information

including:

(i) the particulars of its organisation, functions and duties;

(ii) the powers and duties of its officers and employees;

(iii) the procedure followed in the decision making process, including channels of supervision and accountability;

(iv) the norms set by it for the discharge of its functions;

(v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions;

The disciplinary action on public servant on ‘misconduct’, generally includes aspects

mentioned above. If a public servant does not discharge his function or perform

the duty, accountability aspects are not taken care of, breaches the norms set for

28

discharge of functions, does not follow regulations or manuals etc, he might face

the disciplinary action.

53. Section 8(1)(j) says clearly that “the disclosure of information which has no

relationship to any public activity or interest”, which means if it has

relationship with public it should be disclosed. Information sought in Girish case is

regarding complaints filed against, copies thereof, the disciplinary action taken

against a public servant. Nowhere it was stated that the information withheld was

‘not related to public activity or interest’. These are certain basic factors need to be

considered before deciding whether the order of the Supreme Court dismissing the

SLP in Girish is a reasoned judgment and thus a ratio.

Civil Service (Conduct) rules

54. To understand the relationship between the disciplinary action and ‘public

activity’, we need to know what are the conduct rules, underwhich the public

servant can be inquired into on charges of ‘misconduct’. The complaints if

generated under Central Civil Services (Conduct) Rules, 1964 (in short CCS Rules),

their performance is with reference to public activity unless there is any exceptional

unconnected incident. In principle the actions of employee are public in nature and

exceptionally they could be private also. But it is not correct to say that entire

activity between employer and employee, is personal to the employee. This

statement could be proper with reference to private employment to great extent

with possible exceptions there too. When the conduct of public servant is in

question in complaints and action thereof, it is improper to classify it as ‘personal’

information of the employee concerned.

55. Introduction to the revision of CCS Rules, as available in the website of

Ministry of Personnel refers to recommendations of Committee on Prevention of

Corruption chaired by K Santhanam and based on them, rules were revised. This

means the Government believes in preventing corruption by strictly implementing

the Central Civil Service Conduct Rules. Most of the rules indicate that the attitude,

29

conduct and character of public servants are directly connected to the public

activity and there is a public interest in regulating their conduct40.

56. If this is the purpose of the revision of CCS rules, how can any complaint

against a public servant action there on could be personal information? From the

text of the order of the Supreme Court, it appears that this aspect was not brought

to apex court’s notice. How can this be considered as full-fledged appeal where all

substantial issues were heard to make that a precedent under Article 141?

57. Rule 3A deals “Promptness and Courtesy” and says: No Government servant

shall (a) in the performance of his official duties, act in a discourteous manner; (b)

in his official dealings with the public or otherwise adopt dilatory tactics or wilfully

cause delays in disposal of the work assigned to him. The Rule 3B demands that

every government servant to act in accordance with the Government’s policies

regarding age of marriage, preservation of environment and protection of wildlife

and cultural heritage. They should observe government’s policies regarding

prevention of crime against women. 3C imposed Prohibition of sexual harassment

of working women. In para 7 of Chapter VI of the First Five Year Plan, the Planning

Commission have observed that no officer who does not have a reputation for

honesty should be placed in a position in which there is considerable scope for

discretion. The Government of India fully agree with this observation. [MHA OM No.

41/2/55(II)-Ests.(A), dated 23.04.1955] The rules also provide for action against

those Government servants who do not look after their families properly.

Disciplinary action lies against playing cards on lawns outside the office buildings.

Rule 26 deals with accountability for delay in decision making. A Core Group on

Administrative Reforms (CGAR) under the chairmanship of Cabinet Secretary in

February, 2003 has decided that the existing provisions about accountability

mechanism should be reiterated with a view to bring to everyone’s notice that these

provisions are adequate for initiating disciplinary proceedings when an officer

40

http://www.persmin.gov.in/DOPT/EmployeesCorner/Acts_Rules/CCSRules_1964/ccs_conduct_rules_1964_deta

ils.htm:

30

adopts a dilatory attitude leading to delay in decision-making and/or harassment of

the public.

58. They have to maintain absolute integrity, devotion to duty and do nothing

which is unbecoming of a Government servant. They shall not use their position or

influence directly or indirectly to employment for any member of his family in any

company or firm. Every employee should furnish information in respect of their

close relations in the enclosed proforma which should be added to the confidential

report dossier of the employee concerned.

59. Allegations of sexual harassment, non-maintenance of family and misbehaviour

could be ‘personal’ information of that person, provided he is not in public field or

does not possess public employment. If there is any complaint on such conduct,

against a public servant, does it become personal information of that public

servant? Especially when the public conduct of public person includes the

maintenance of family, if action is taken against him for such misconduct relating to

his own family, it will not be proper to classify that information as ‘personal’ and it

will be illegal to restrict such information from disclosure.

60. If a public servant is found guilty of an offence of moral turpitude by a court

of law and punished; he will also face a disciplinary action which might even lead to

dismissal from employment. It will not be a case of double jeopardy, a principle of

justice which means that none should be punished twice for same offence, though it

looks like that. If he is penalized by court of law, he should not be allowed to

represent the ‘state’. For instance, a proved rapist or killer cannot hold public office

under ‘state’. Sitting in the seat of public office, if a public servant affects the rights

of people in general, one member of such public has authority to demand

information. Thus:

a) there is no legal basis for considering the conduct of public servants in the

service of public or public authority as his/her private information. The legal

boundaries of personal or privacy are specified by the division bench of

Supreme Court in R Rajagopal, which remain in force as precedent as it was

31

not overruled. It is not logical or legal to say that the public conduct of public

servant has no relation with public activity or public interest. The Decision of

Supreme Court in R Rajagopal on the privacy and personal information was

clearly defined and the information about conduct of public servant in his

public office will not fall under the categories of information defined as

personal information in that case.

b) When the employer is “the State” (=public in democracy) its relation with the

employees, i.e., public servants is totally different from relation between

private employee or private institute or a shop. And the information about

service and service related conduct of the public servant during his

employment in public authority may be public information and may not be

personal information of that employee. This question has to be decided in

each and every case base on facts and circumstances of that case. The

information about disciplinary action, memos, reports etc against that public

servant is part of ‘information’ as defined under Section 2(f) of Right to

Information Act, 2005, and it can be disclosed subject to Section 8 and 9 of

that Act.

c) As far as the assets related information is concerned, the Supreme Court’s

order in PUCL v UoI and ADR v UoI besides the Lokpal Act. 2003 laid down

the law that public servant’s assets related information is not personal

information but has to be disclosed under a statutory obligation and thus

could be disclosed under RTI Act.

d) In view of the several other decisions of the Supreme Court quoted above

and objectives of the Right to Information Act, 2005, the information about

disciplinary action taken against the public servant can be shared as per the

Act.

61. The principle laid down in Girish Ramachandra Despande cannot be used by

the public authority to deny the information sought. In fact, if that principle is

universally quoted in every case claiming the protection of sec 8(1)(j) then

information relating to any public servant in respect of his conduct or illegal

32

activities, especially corruption could be withheld as secret. Such an application will

defeat very purpose of the Right to Information Act. Is it proper to say official

conduct of a public servant in a public authority with reference to the disciplinary

action taken on charges of a bogus TA claim is not related to official or public

activity of the authority? It is in public interest to reveal why the punishment was

imposed on a public servant and then why it was revoked?

62. The Commission observes that the conduct of the public authority in the

case of Dr. R.R. Singh was in relation to the false claim of TA, enquiry thereafter,

disciplinary action taken and its straightaway revocation which is directly connected

to the public activity of public authority and it also deals with misuse of public

money. In view of the Supreme Court judgments cited, various other legal aspects

and the facts produced, the Commission concludes that the information sought

pertains to public interest/public activity hence it does not attract the exemptions

under sec 8(1)(j).

63. The Commission directs the Public Authority to provide point-wise

information sought along with the reasons for revocation of punishment of Dr. Dr.

R.R. Singh during the 41st BOM meeting held on 19.09.2013 and 42nd meeting

held on 19.12.2013 respectively.

64. The Commission also recommends the public authority to take the second

appeal and the application of the appellant as a complaint against revocation of

penalty which was revoked after considering the report of the enquiry committee

and provide action taken report.

SD

(M. Sridhar Acharyulu) Central Information Commissioner

33

Authenticated true copy

(Dinesh Kumar) Deputy Registrar Addresses of the parties:

1. The CPIO under RTI, RTI Cell,

PEC University of Technology, Sector-12,

Chandigarh-160012

2. A.M.Kalra

1023, Sector-42-B,

Chandigarh-160012