Open the doors in Departmental Enquiry cases

BY : Amitabh Thakur

IPS officer U.P. working transparency in governace The Hon'ble Supreme Court and the various High Courts have said over the years that the Departmental Enquiry and criminal investigation are two different, but the Central Information Commission (CIC) seems to think differently in a matter related with the Right to Information Act. 2005. RTI Act, as we all know, is an Act to provide for setting out the regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. This Act gives every citizen a "right to information" which means the right to information accessible under this Act which is held by or under the control of any public authority. Section 8 of this Act is related with exemption from disclosure of information, which says that notwithstanding anything contained in this Act, there shall be no obligation to give any citizen any information mentioned/prescribed in various sub-sections of this section. Among the various sub-sections is section 8(1)(h) of the RTI Act which is related with information that would impede the process of investigation or apprehension or prosecution of offenders. It is these words of section 8(1)(h) RTI Act that the CIC seems to be misinterpreting and wrongly extrapolating to include in it all the Departmental Enquiries and proceedings that are carried under various provisions of Administrative laws prescribed for different government services and suo-motu extending the definition of investigation to include disciplinary proceeding against a government employee saying that they are one and the same. Through an order dated 26/02/2007 in Rajeev Shrivastava vs Vijay Sood and others, the CIC stipulated this view. The CIC has consistently kept this stand and only recently in my case Amitabh vs PIO, USCC, it again said-"The CIC has held on several occasions in the past that the disciplinary proceedings/departmental enquiry instituted against any public servant is equivalent to the investigation and prosecution of an offender as contemplated in subsection 1(h) of section 8 of the RTI Act." Prima-facie section 8(1)(h) seems to be clearly limited and restricted to the process of investigation or with apprehension of offenders or the prosecution of the offenders. But the CIC seems to be interpreting and extrapolating it in its own way. This is because investigation is a legal term defined in section 2(h) of the Code of Criminal Procedure 1973 (CrPC). There is a full Chapter XII in the CrPC titled "Information to the police and their powers to investigate". "Offender" means a person who has been named, alleged, designated or charged for "an offence" and the word "offence" has been defined even more widely in section 3(38) of the General Clauses Act, 1897 as- "Offence shall mean any act or omission made punishable by any law for the time being in force." The apprehension and arrest of persons has been dealt in Chapter 5 of CrPC which deals with different kinds and different situations for arrest. Similarly the concept of Prosecution has been dealt with in section 24(1) of the CrPC. Thus each of the words stated in section 8(1)(h) of the RTI Act are clearly defined legal terms. Unlike these words, Departmental proceeding has not been defined per se in so many words at any particular place or in any rule but it has been universally accepted to be a quasi-judicial proceeding to find out the truth of allegations against an employee and to punish if found guilty. It is dealt by delegated legislation where the Executive authorities frame disciplinary rules for their respective employees, where various forms of punishments and the procedure to be adopted for such punishments are prescribed. This fact has been stated umpteen number of times by the various High Courts and the Supreme Court of India. The Punjab and Haryana High Court in K.R. Sharma vs State of Punjab through the Chief Secretary said - "Obviously such (Departmental) proceedings can-not be said to be criminal proceedings governed by the terms and provisions of the Criminal Procedure Code" while in State of Rajasthan Vs. Shri B.K. Meena & others, the Hon'ble Supreme Court had said- "The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different." From the perusal of the above orders, it becomes quite apparent that the various superior courts have been consistently recognising and acknowledging the fact that disciplinary proceedings are completely different from criminal proceedings. Hence for the CIC to equate Departmental Enquiry with criminal investigation does not seem to be correct This view kept by the CIC is coming in the way of thousands of government servants who are being denied the information related with departmental proceedings. It seems to go against the basic spirit of the RTI Act. It is high time this view is suitably amended in the light of the fact that RTI Act is primarily for transparency and openness and any information shall be withheld only when there is an immense genuine need for it.

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