Union of India (UOI) vs D.N. Kar

S. Muralidhar, J.—In view of the decision of the Division Bench of this Court in Union Public Service Commission Vs. Shiv Shambhu and Others, the name of Respondent No. 1 is struck off from the array of parties. The cause title will now read as "Union of India v. D.N. Kar."

The present petition by the Union of India is directed against an order dated 3rd April 2008 passed by the Central Information Commission (''CIC'') allowing the Respondent''s appeal and directing the Petitioner to furnish to the Respondent relevant documents pertaining to the inclusion of his name in the "Agreed List" after due application of Section 10(1) of the Right to Information Act, 2005 ("RTI" Act).

2.1. Admittedly the Respondent was included in the "Agreed List" in the year 2004 and his name continued to be on the said list in 2005 and 2006. It is stated that he was subject to discreet inquiry/watch by the Central Bureau of Investigation (''CBI'') as his name figured in the "Agreed List". The Petitioner referred to instruction No. 1881 dated 13th February 1991 of the Department of Revenue, Central Board of Direct Tax (''CBDT'') which laid down guidelines regarding preparation and operation of the "Agreed List". One of the guidelines was as under:

Reason for inclusion:

Henceforth, in every case where an officer''s name is being included in the ''agreed'' list, a gist of the material, on the basis of which this is being done, must invariably be put on record.

The above instruction further provided as under:

Period: Normally, an officer should not remain on the "agreed" list for more than one year on the same ground. However, in exceptional cases, this initial period may be extended by one year each to a maximum of 3 years with the prior approval of the Central Board of Direct Taxes (CBDT).

The Respondent filed an application under the RTI Act before the Additional Commissioner of Income Tax (Headquarters, Administration), who was the Central Public Information Officer ("CPIO"), seeking the following information:

File pertaining to the preparation of "Agreed List" for the year 2004 containing the recommendations of higher authorities seeking inclusion/deletion of names and the final recommendation of the office of the CCIT on the above matter.

The CPIO by an order dated 16th January 2007 rejected the above request made by the Petitioner by referring to the CIC''s decision dated 1st May 2006 in Appeal No. 31/IC(A)/6, upholding in that case, the decision of the CPIO not to disclose the information by invoking Section 8(1)(h) of the RTI Act. It was held that "the information by such superior authorities is given in confidence and is held in fiduciary capacity, the permission to inspect the file with regard to suggestions made for inclusion/deletion of names in the agreed list would be against the spirit of Sections 8(1)(e), 8(1)(j) and 8(1)(h) of the RTI Act."

Aggrieved by the above decision, the Respondent filed an appeal before the Chief Commissioner Income Tax ("CCIT"), which by its order dated 17th April 2007, had rejected the Respondent''s appeal, inter alia, on the ground that ''the Agreed List is a matter of internal convenience and is not generally meant to be aired in public. For should such arising be done, an innocent order''s name may well get tarnished in public without need or sanction.''

In the further appeal filed by the Respondent, the CIC had allowed the appeal by the impugned order 3rd April 2008. The operative portions of the order reads as under:

u/s 4(1)(d) of the Act, every public authority is required to indicate the grounds for action or decision taken, at least to the affected person. In the instant case, the Appellant''s name was included in the Agreed List on the basis of an information to keep a watch on the Appellant''s conduct and behavior in the matter of discharging the public functions. Even though the inclusion of name in the Agreed List is not considered sufficient basis for initiating disciplinary proceedings, an affected person has a right to know the grounds on the basis of which the competent authority may have recommended the Appellant''s name for inclusion in the Agreed List and, subsequently, watch on the activities of the Appellant. To an extent, integrity of an official is indeed questioned or suspected. Such a list is maintained for only one year. The list of 2004, in which the Appellant''s name was included, has already served the mandatory purpose, mainly to establish the fact about the integrity of the allegedly corrupt official. There is thus a strong jurisdiction for indicating the grounds for recommending the name of the Appellant for inclusion in the Agreed List, as he is an affected person u/s 4(1) of the Act.

In view of this, the CPIO is directed to furnish the relevant documents pertaining to the inclusion of the Appellant''s name in the Agreed List, after due application of Section 10(1) of the Act. The CPIO is free to withhold the name of officials, who may have provided critical inputs and recommended the inclusion of the Appellant''s name in the Agreed List. He may also withhold the name of the complainants, if any, in the matter, while the contents of such inputs should be disclosed to enable the alleged official to prove his innocence. The relevant information may thus be disclosed within 15 working days from the date of issue of this direction.

This Court has heard the submissions of Mr. S.K. Dubey, learned Counsel for the Petitioner and Mr. Kannan Kapur, learned Counsel for the Respondent.

Mr. Dubey first submitted that since prior to the inclusion of the Petitioner''s name in the Agreed List, inputs were received by the CBI and other intelligence agencies, which were then the subject matter of the investigation, such information was exempt from disclosure in terms of Section 24 of the RTI Act read with the Second Schedule thereof. This Court finds that no such plea has been raised by the Petitioner earlier. It is not even averred in the present writ petition. Further, CBI is not an organization listed in the Second Schedule to the RTI Act. There is absolutely nothing to show that any inputs were provided by any other intelligence agency listed in the Second Schedule. This contention is accordingly rejected.

It was then submitted by Mr. Dubey that in terms of Section 8(1)(e), 8(1)(j) and 8(1)(h) of the RTI Act it was not in the public interest to disclose such information concerning the Respondent even to the Respondent. It was submitted that if the Respondent was told that he was included in the "Agreed List" then the very purpose of keeping him under surveillance by including his name in such list would be defeated. It was also submitted that the information about the Respondent may have been received from other persons, some of whom may have given it to the Department in a fiduciary capacity. It would not be in public interest therefore to disclose the information sought for to the Petitioner.

In the considered view of this Court, the above submissions are misconceived. The Respondent is seeking information only about himself being included in the Agreed List. There is no question of the Department invoking the right to privacy of the Respondent to deny him information concerning him which is held by them. The apprehension that such information may tarnish the reputation of the Respondent is also misconceived. It is also the Respondent himself who is asking the information on the material on the basis of which his name was included in the "Agreed List". Moreover, the period during which the Respondent''s name was included in the "Agreed List" has long come to an end. The period during which he was kept under surveillance is over. By disclosing to the Respondent the material on the basis of which his name was included in the Agreed List, there is no danger of, the purpose of placing him under surveillance, being defeated.

As regard inputs that might have been given to the Department by certain persons in a fiduciary capacity, this Court finds that the CIC has, in its impugned order dated 3rd April 2008, adequately accounted for such contingency. It has been directed by the CIC that the CPIO is free to withhold the names of the officials who might have provided critical inputs and recommended the inclusion of the Respondent''s name in the Agreed List. Further, the CPIO has also been permitted by the CIC to withhold the name of the complainant, if any, in the matter.

This Court concurs with the view expressed by the CIC that if the Respondent feels that his name was wrongly included in the Agreed List for three years continuously and that such inclusion is indeed a stigma on his career and, therefore, he wishes to prove his innocence, he cannot be deprived of such an opportunity by withholding the material on the basis of which his name was so included. Adequate safeguards have already been provided for by the CIC in its impugned order. In the circumstances, there can be no justification for the Petitioner to deny the Respondent the information sought by him.

For the aforementioned reasons, this Court finds no merit in the writ petition. Accordingly, it is dismissed with costs of ` 5,000/- which will be paid by the Petitioner to the Respondent within a period of four weeks. The interim order stands vacated and the application for stay is also dismissed. CM 10885 of 2008 seeking impleadment also stands disposed of.