Dear friends
Below is my appeal petition to Chief Information Commissioner, Odisha to rehear my Complaint petition (CC No.1772/10) in which the Commission upheld that Property Statement of Govt. employees can not be disclosed.
Regards
Pradip Pradhan
M-99378-43482
Appeal under section 19(9) of the RTI Act
To
The State Chief Information Commissioner, Odisha
Toshali Bhawan
Satya Nagar, Bhubaneswar
Sub- Appeal for rehearing of Complaint case No. 1772/10 as per section 19(9) of the RTI Act.
Sir
I beg to bring to your kind notice the following matter seeking your judicious action.
That, on dated 30.7.12, while adjudicating my Complaint case, the Commission disallowed my request of Property Statement of Mr. B.B.Dhal, General Manager, District Industries Centre , Ganjam citing section 8(1)(j) and 8(1)(e) of the RTI Act.
I object the ground cited by the Commission for denying information about property statement of an officer.
First, Section 8(1)(j) of RTI Act is not applicable in this case. To my view, Property statement of B.B.Dhal can not be attributed as personal information. Mr. Dhal is a Govt. employee. His salary and other allowances is provided by the citizens of the country. As per Orissa Civil Service Conduct Rule, it is the routine affairs of every Govt. officer or employees to submit Annual property Statement to the concerned public authority. The citizens has right to know under RTI Act about the movable and immovable property possessed by a Govt. employee. I do quote herewith decision of Shailesh Gandhi, Central Information Commissioner (Decision No. CIC/SG/A/2009/000818/4195, Appeal No. CIC/SG/A/2009/000818) in which he has defined Personal as follows
"Words in a law should normally be given the meanings given in common language. In common language we would ascribe the adjective 'personal' to an attribute which applies to an individual and not to an Institution or a Corporate. From this it flows that 'personal' cannot be related to Institutions, organisations or corporates. ( Hence we could state that Section 8 (1) (j) cannot be applied when the information concerns institutions, organisations or corporate.)
Further Mr. Gandhi has stated that the phrase 'disclosure of which has no relationship to any public activity or interest' means that the information must have some relationship to a Public activity. Various Public authorities in performing their functions routinely ask for 'personal' information from Citizens, and this is clearly a public activity. When a person applies for a job, or gives information about himself to a Public authority as an employee, or asks for a permission, licence or authorisation, all these are public activities. The information sought in this case by the appellant has certainly been obtained in the pursuit of a public activity." Therefore we can state that disclosure of information such as assets of a Public servant, which is routinely collected by the Public authority and routinely provided by the Public servants, cannot be construed as an invasion on the privacy of an individual. There will only be a few exceptions to this rule which might relate to information which is obtained by a Public authority while using extraordinary powers such as in the case of a raid or phone-tapping.
Secondly, I object applicability of section 8(1)(e) in context of disclosure of property statement. There is no such fiduciary relationship between Govt. and employees. It is routine affairs of an institution to seek property statement of the officers. I refer the word fiduciary defined by Shailesh Gandhi, CIC. "The traditional definition of Fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter's benefit within the scope of that relationship. In business or law, we generally mean someone who has specific duties, such as those that attend a particular profession or role, e.g. financial analyst or trustee. The information must be given by the holder of information when there is a choice,- as when a litigant goes to a particular lawyer, or a patient goes to particular doctor. It is also necessary that the principal character of the relationship is the trust placed by the provider of information in the person to whom the information is given. An equally important characteristic for the relationship to qualify as a fiduciary relationship is that the provider of information gives the information for using it for his the benefit of the giver. All relationships usually have an element of trust, but all of them cannot be classified as fiduciary. The information on the assets and properties held by a public servant are provided in the fulfillment of a statutory requirement and there is no element of choice in providing this information."
It has been seen in number of decisions of CIC declaring that Assets declared by public servants can be disclosed under RTI : I do present some findings as stated below:
CIC Bench of A.N. Tiwari & M. L. Sharma In case of Shri P.P. Rajeev Vs. Cochin Port Trust in Appeal No. CIC/AT/A/2008/00707 dated 29.05.2008 held in that : Para -32. We, therefore, reiterate that there cannot be an omnibus order about the disclosure of all immovable assets-related information of employees of public authorities. The government or the public authorities may frame rules about disclosure of this class of information held by them as filed by their employees, but till such time as these Rules are framed and, the condition of confidentiality in which such information is handed over to the public authority holds good, the request for their disclosure will have to be considered on a case-by-case basis under the provisions of Sections 8(1)(j) and 11(1) of the Act. Similarly, it shall be open to any public authority or the Government to voluntarily undertake to disclose this variety of information, fully or in part.
Para-33 33. Accordingly, the present case is remitted back to the CPIO, Cochin Port Trust, with the direction that he will consider this matter under the provisions of Section 8(1)(j) and/or Section 11(1) of the RTI Act and then take a view as enjoined by either or both Sections, which shall be communicated to the appellant within 6 weeks from the date of the receipt of this order.
Source: http://rti.india.gov.in/cic_decisions/CIC_SG_A_2011_003719_17410_M_76699.pdf
In a case involving Kendriya Vidyalaya Sanghathan, CIC , Mr. O P Kejariwal ruled:
"This Bench, however, holds that Annual Property Returns by government employees are in the public domain and hence there seems to be no reason why they should not be freely disclosed. This should also be considered as a step to contain corruption in government offices since such disclosures may reveal instances where property has been acquired which is disproportionate to known sources of income. The Commission, therefore, directs the Respondents to provide copies of property returns asked for by the Appellant"
CCIC Wajah Habibulla held in Appeal No.CIC/WB/A/2007/01593 dated 12.12.2007 on the disclosure of property statements this Commission has taken a decision in File No. CIC/OK/A/2007/01493 & CIC/OK/A/2008/00027 in the case of Shri Roshan Lal vs. Kendriya Vidyalaya Sanghathan that such property statements are not confidential documents and, therefore disclosable.
As the country is moving towards a transparent regime, the Central Govt. has already publicly disclosed the Annual Property Statement of All India Officers like IAS, IPS, IFS etc. These information has been uploaded in website. The Election Commission of India has publicly exposed property statement of contesting candidates, Ministers, MPs etc. in 2006, Central Information Commissioner has issued direction to Supreme Court to provide property statement of judges under RTI Act. Information Commissioners of Odisha have hosted their property statement in website. When there is no harm in disclosing property statement of big officers , Ministers, judges in the country, Commission's reluctance to order for disclosure of property statement is unwarranted.
I further mention here that Bihar Govt. has publicly webhosted property statement of all officers which is accessable by any citizens across the country. It is matter of great regret that State Govt. has not webhosted property statement of any officers. Is not it colonial secrecy.
I appeal you to hear my case and provide me the complete information.
Thanking you
Yours faithfully
Pradip Pradhan
Appellant
Date-23.8.12
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