The Wire: New Delhi: Saturday, June 30, 2018.
The Central
Information Commission (CIC) has ruled that an officer accused of sexual
harassment has a right to “get all information and opportunity to defend
himself and prove that allegation was false” and has imposed the maximum
penalty of Rs 25,000 on a central public information officer (CPIO) for denying
such information to an appellant.
The
appellant, Balkrishna Porwal, had in September 2017 sought information from the
CPIO of the Department of Posts on 15 points related to an enquiry on a
complaint of sexual harassment lodged against him.
However, a
fortnight later, the CPIO had asked him to submit Rs 6 for information related
to three of the points and denied information on the rest of the points under
Section 8 (1)(d) and (g) of the Right to Information Act, 2005 and under
Section 16 of the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013. The same was upheld by the first
appellate authority, who Porwal had appealed to.
Thereafter,
Porwal approached the CIC. He submitted that the principles of natural justice
demand that certified copies of all documents relating to the inquiry report,
including copies of the statements of witnesses, should be given to him so that
he can substantiate his defence.
‘CPIO did not
explain or justify denial of information’
Upon hearing
the contentions of the appellant and going through the clauses and Acts cited
by the CPIO in his order, central information commissioner M. Sridhar Acharyulu
observed that “the CPIO neither explained nor justified how these clauses could
be invoked in this case. He has not applied his mind at all.”
Having gone
through the arguments, Acharyulu wondered “how the statement of witnesses and
other documents relating to sexual harassment complaint could be considered as
‘trade secret’, ‘commercial confidence’ or ‘intellectual property’ of the third
party or public authority?”
“This is
absolute absurdity,” he said, adding that while “the appellant himself gave the
names of the four witnesses and asked for their statements of evidence to be
given during inquiry”, this information was denied under an excuse that their
physical security could be threatened.
“These
excuses are laughable and amount to misuse of law by authority to deny the
right to information of the appellant. It also reflects malafide on the part of
the CPIO. If this is the way information
is denied and accused is not allowed to defend, false allegations will increase
and real purpose of SHW Act of 2013 and RTI Act will be totally defeated,” the
CIC recorded in his order.
‘SHW Act
provides for sharing information with both parties’
In his order,
Acharyulu also referred to the relevant sections of the SHW Act 2013 which
provide for sharing of information with the accused.
He recorded
in the order that Section 11 of the Act – which deals with the ICC – states:
“Provided further that where both the parties are employees, the parties shall,
during the course of inquiry, be given an opportunity of being heard and a copy
of the findings shall be made available to both the parties enabling them to
make representation against the findings before the Committee.”
Similarly,
Section 13 of SHW Act 2013 notes: “On the completion of an inquiry under this
Act, the Internal Committee or the Local Committee, as the case may be, shall
provide a report of its findings to the employer, or as the case may be, the
District Officer within a period of ten days from the date of completion of the
inquiry and such report be made available to the concerned parties.”
These two
provisions, he said, provide for a right to information to the accused person.
‘Sexual
harassment is a serious allegation, can ruin career, life of accused’
Acharyulu
also gave a detailed account of why there was a need to treat such cases with
all the sensitivity and responsibility they deserve. “The charge of sexual
harassment is a serious allegation which if falsely made and proved by
suppression of information to the accused, it can ruin the career of the
accused, cause permanent and irreparable damage to the reputation and also disturb
his domestic life affecting his relations with his wife and children,” he
wrote.
As per the
Sexual Harassment at Workplace Act 2013, the CIC said a person accused “would
be shifted, and he might even face criminal prosecution under IPC which in our
country would span over a decade or more involving huge expenditure and going
to courts for several rounds as an accused person.”
Pointing out
that “a false allegation can render his life a hell for the accused officer and
if innocent, the officer might suffer serious mental torture also,” the CIC
said it needed to be remember that such an act “can destroy a person totally.”
Therefore, he
reasoned, “the due process, principles of natural justice and legal provisions
of the SHW Act of 2013 provide him a right to defend himself from allegation of
sexual harassment, and the right to information to secure all those related
documents will strengthen that right.”
‘Access to
information for defending oneself in penal proceedings is a human right’
Acharyulu
also held that “it is the human right of appellant in his capacity as a citizen
and accused under the RTI Act and under the principles of criminal justice, to
all the related information to defend himself in a penal proceedings.” The
expression ‘human rights’ is defined in Section 2(d) of the Protection of Human
Rights Act, 1993, he said, adding that “human rights” means the rights relating
to life liberty, equality and dignity of the individual guaranteed by the
constitution or embodied in the International Covenants and enforceable by
courts in India.
In this
regard, the CIC also cited a recent ruling by another information commissioner,
Yashovardhan Azad, in M Dinesh v PIO, Bureau of Immigration/Intelligence Bureau
in which he had held that “it was a human right of the accused facing inquiry
to have complete information.”
Public
authority directed to deduct penalty amount from CPIO’s salary, take
disciplinary action against him
As for the
imposition of penalty on the CPIO, Acharyulu held that “by denying the
information the appellant was not only harassed by the public authority, but
also by the CPIO.” Referring to the demand of Rs 6 made from the appellant for
the release of three pages of information, the Commissioner further held that
“this reflects at least, the harassing nature of the CPIO, which is surely a
sign of malice. The problem of CPIO is the mindset and attitude. It is part of
malice.”
For these
reasons, Acharyulu said, “the commission concludes that denial of information
to the appellant was without any reasonable cause, and hence liable for the
maximum penalty of Rs. 25,000”. Holding the CPIO liable under section 20 of the
RTI Act for imposition of penalty of Rs 25,000, he directed that the amount be
deducted from the salary of the CPIO, R.D. Kaurava, by the public authority in
five equal monthly instalments. The commission also termed it a “fit case to
recommend the public authority to initiate disciplinary action against the
CPIO”.
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