Indian Kanoon - Search engine for Indian Law

Central Information Commission

Manjunatha Papanna vs Bharat Heavy Electricals Limited ... on 7 February, 2020

                                 के न्द्रीयसूचनाआयोग
                      Central Information Commission
                              बाबागंगनाथमागग,मुननरका
                       Baba Gangnath Marg, Munirka
                        नईददल्ली, New Delhi - 110067

नितीय अपील संख्या / Second Appeal No. CIC/BHELD/A/2018/124481

Manjunatha Papanna                                      ... अपीलकताग/Appellant
                                  VERSUS/बनाम

BHEL,                                                   ...प्रनतवादीगण /Respondent
CPIO/ Dy. General Manager- HR,
Chennai
Through: Smt.. Rachna, CPIO
Sh. Shahji, Sr. DGM, HR/FAA
Smt. Mihika (Adv. for the third party)
Date of Hearing                        :   24.01.2020
Date of Decision                       :   06.02.2020

Information Commissioner          :        Shri Y. K. Sinha
Relevant facts emerging from appeal:
RTI application filed on               :   12.01.2018
PIO replied on                         :   13.02.2018
First Appeal filed on                  :   19.02.2018
First Appellate Order on               :   24.03.2018
2ndAppeal/complaint received on        :   18.04.2018

Information sought

and background of the case:

Appellant filed RTI application dated 12.01.2018 seeking information on seven points:-

1. Work Order with T&C, GCCA progress report.

2. All Letters/Communications endorsed by the Contractor to BHEL and BHEL to Contractor.

3. Monthly RA bill containing detailed sheets of uptodate monthly invoice, WAM 06, Abstract, 2301a-fabrication, 2301b,-1 placement, 2301b-2 welding, A2302 Sandblasting, A2302-a Painting, Civil Works, Architectural works, etc..

4. Inspection protocols sheets for the items 2301a-fabrication, 2301b-1 placement, 2301b-2 welding, A2302 Sandblasting, A2302- a Painting, etc... including civil works.

5. Details of Monthly certified quantity/bills paid by BHEL against RA bills.

6. Complete details of item & individual piece wise measurement sheet recorded for passing monthly running account bills.

7. Complete details of payments made (item-wise) against monthly certified bills.

PIO/Dy. General Manager(HR), BHEL PSSR, Chennai vide letter dated denied information under various provisions of the RTI Act including Section 7(9),8(1)(a) and 8(1)(d) of the RTI Act, 2005.

Being dissatisfied, the Appellant filed First Appeal dated 19.02.2018. FAA vide order dated 24.03.2018 upheld the reply of PIO and dismissed the appeal for reasons recorded therein.

Feeling aggrieved over the non-compliance of FAO, Appellant approached the Commission with the instant Second Appeal.

Facts emerging in Course of Hearing:

The hearing was held through video conferring.

Both the parties are present for the hearing.

Third party is also present for the hearing.

A communication letter is received from Shankar Narayana Constructions Pvt. Ltd (Third Party) authorising M/s. Keystone Partners (Advocates & Solicitors) to appear, act and plead on their behalf in the instant case. A voluminous submission dated 17.01.2020 is received from Respondent, setting forth detailed arguments against the disclosure of the information sought vide present RTI application. It is stated therein that the Appellant is the sub-contractor of the third party (M/s. Shankar Narayana Constructions Pvt. Ltd).

Another submission dated 16.01.2020 is received from Appellant whereby he has laid down reasons for disclosure of information sought by him. Respondent apologises for inadvertently quoting the wrong provision of the RTI Act i.e. Section 8(1)(a), in denying disclosure of information to the Appellant. it is the submission of the Respondent that Appellant did not turn up for the FAA hearing despite service of notice for the hearing in advance. Instead written submission dated 12.03.2018 containing his arguments were sent by the Appellant for consideration during the FAA hearing. It is submitted that the Appellant is the sub-contractor of the third party (M/s. Shankar Narayana Constructions Pvt. Ltd). It is also mentioned therein that an ongoing litigation at MSME Court, Banglore between third party and Appellant is pending adjudication. In this regard, vide letter dated 22.03.2018 a request was made by the third party before the Respondent for not furnishing the details to the Appellant who is a direct competitor to them.

Appellant reiterates the facts and circumstances leading to the present Second Appeal. Appellant rejects all the contentions of the Respondent and the third party. Appellant alleges to have knowledge of certain deviation materials used against the tender specification. Therefore he insists upon disclosure of the information on the grounds of overriding public interest.

Decision:

The exemption offered under Section 8(1) (d) of the RTI Act is only conditional, that is the exemption is subject to the overriding power of the competent authority under the RTI Act in larger public interest, to direct disclosure of such information. Thus, the onus is on the public authority to satisfy the Commission as to how and to what extent the information sought by the Appellant, includes matters of commercial confidence, trade secret or intellectual property of the third party, the disclosure of which would harm the competitive position of the third party.

It is relevant herein to rely on the decision of Jharkhand High Court in the matter of State Of Jharkhand And Anr. vs Navin Kumar Singha And Anr. on 8 August, 2007 where the aspect of Sec 8(1)(d) was discussed in detail. The operative part of the decision is extracted below:

"26. ... The question, therefore, that falls for consideration is as to whether disclosure of various documents submitted by the bidders is a trade secret or commercial confidence or intellectual property. Prima facie, we are of the view that once a decision is taken in the matter of grant of tender, there is no justification to keep it secret. People have a right to know the basis on which the decision has been taken. If tenders are invited by the public authority and on the basis of tender documents, the eligibility of a tender or a bidder is decided, then those tender documents cannot be kept secret, that too, after the tender is decided and work order is issued on the ground that it will amount to disclosure of trade secret or commercial confidence. If the authorities of Government refuse to disclose the document, the very purpose of the Act will be frustrated. Moreover, disclosure of information, sought for by the petitioner, cannot and shall not be a trade secret or commercial confidence; rather disclosure of such information shall be in public interest, inasmuch as it will show the transparency in the activities of the Government.

The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information, which relates to securing transparency and accountability in the working of public authorities Thus, Commission concurs with the view adopted by the Hon'ble Jharkhand High Court wherein it has been categorically stated that the contract entered into by the public authority cannot be treated as confidential after the tendering process is over & after the conclusion of the contract. Any information pertaining to a project entered into by/between public authorities shall not be withheld by the PIO, after its completion, in the interest of justice and fairness. Doing so, without any substantial cause, would only cast suspicion of malafide intent on part of the public authority. Moreover the fact that matter is sub-judice before a court of law does not per se entail that Respondent is exempted from disclosure of information. The Commission therefore sets aside this argument of the Respondent and the third party.

In the light of the foregoing and keeping in view the distinctive facts of this case, the Commission deems it appropriate that the case be remanded to FAA to adjudicate the matter and ensure that a revised and proper reply is provided to the Appellant by the PIO, answering each of the queries raised in the RTI application and in terms of the established position of the law discussed above, ensuring maximum disclosure of the information in terms of the RTI Act. The appeal shall be decided by a reasoned, speaking order. An action taken report containing the reply provided to the Appellant shall be submitted by the PIO before the Commission, with a copy of marked to the Appellant, within 1 month from the date of issue of this order.

;The FAA hearing should preferably be held on video conferencing since the Appellant resides in Bangalore, to afford opportunity of fair hearing to all the parties.

The appeal is disposed off accordingly, with the above observations and directions.

Y. K. Sinha (वाई. के . नसन्द्हा) Information Commissioner(सूचना आयुक्त) Authenticated true copy (अभिप्रमाणितसत्यापितप्रतत) Ram Parkash Grover (राम प्रकाश ग्रोवर) Dy. Registrar (उप-पंजीयक) 011-26180514 Page 4 of 4