Central Information Commission
B Srihari vs Bharat Heavy Electricals Limited ... on 7 July, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No: CIC/BHEDL/A/2022/661740
B Shrihari ....अपीलकता /Appellant
VERSUS
बनाम
CPIO,
BHEL POWER SECTOR NORTHERN
REGION, HRDI, PSNR COMPLEX,
RTI CELL, PLOT No. 25, SECTOR 16 A,
NOIDA, U.P.-201301 .... ितवादीगण /Respondent
Date of Hearing : 06/07/2023
Date of Decision : 06/07/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 26/09/2022
CPIO replied on : 07/10/2022
First appeal filed on : 28/10/2022
First Appellate Authority order : 15/11/2022
2nd Appeal/Complaint dated : 20/10/2022
Information sought:
The Appellant filed an RTI application dated 26.09.2022 seeking information related to BHEL, including inter alia, as follows;
1. "Work order with T&C, progress report.
2. All letter/communication endorsed by the contractor (EM Service) to BHEL and BHEL to Contractor.1
3. Monthly RA bill containing detailed sheets of Up to date monthly invoice until the completion of the project.
4. Details of monthly certificate quantity /bills paid by BHEL against RA bill.
5. Complete details of item & individual piece wise measurement sheet recorded for passing monthly running account bills.
6. Complete details of payment made (item-wise) against monthly certificate bills.
7. The Arbitration case detailed information between BHEL vs EM service."
The CPIO furnished a reply to the appellant on 07.10.2022 stating as under:
"Point no. 1 to 6:- The information sought are commercial information of third party which stand exempted from disclosure under section 8(1) (d) of RTI Act, 2005.
Point no. 7:- Arbitration case between BHEL PSNR and M/s EM service is still under progress."
Being dissatisfied, the appellant filed a First Appeal dated 28.10.2022. FAA's order 15.11.2022 furnished a revised point wise reply to the Appellant stating as under -
xxx xxx xxx 2 Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal on the ground of denial of information by the CPIO.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Not present.
Respondent: Susmita Basu, AGM & CPIO present through intra-video conference. Third Party: Praveen Chourasia present through intra-video conference.
The CPIO reiterated the contents of her written submissions dated 01.07.2023, relevant extracts of which are reproduced below for ready reference -
"....appellant, Mr. B. Srihari has sought information pertaining to the work awarded to M/s FM Services namely, work order, invoices, letters/ communication.
B. The FAA, BHEL-PSNR vide order dated 15.11.2022 has provided soft copy of the work order with T&C to the Appellant. Balance information like invoices, letter/ communication has been denied inter-alia on the grounds of
a) non-availability of documents (documents pertaining to project completed long back hence not preserved)
b) "Confidentiality of information" under section 42A of the Arbitration and Conciliation Act 3
c) exempted wider section 8 (I) (d) of the RTl Act.
C. In the present appeal the Appellant has contended that There was an arbitration claim with BHEL-NR vs EM Services. The settlement was done by providing overhauling to EMS I need the LOI details regarding this arbitration claim and any invoices raised by EMS to BHEL.
The said statement is factually incorrect, as neither there was any settlement between BHEL and M/s EMS, nor BHEL has awarded any LOI for overhauling to M/s EMS.
I). It is humbly submitted that M/s EM Services has filed its claims in the arbitration invoked by him against BHEL and the proceedings are pending before the Tribunal. It is submitted that the Arbitration and Conciliation (Amendment) Act, 2019 introduced Section 42A, which places obligation on the parties to maintain confidentiality of arbitration proceedings. The Section 42A is reproduced below:
"42A. Notwithstanding anything contained in any other law for the time being in force, the arbitrator. the arbitral institution and the parties to the arbitration agreement shall maintain confidentiality of all arbitral proceedings except award where its disclosure is necessary for the purpose of implementation and enforcement of award."
E. It is further submitted that Arbitration and Conciliation Act, 1996 is a comprehensive special legislation and Section 42 A is a non-obstante clause, which means that it overrides the effect of other law/Act including the RT1 Act and makes it mandatory for the parties to abide by the provisions of the Act regarding maintaining confidentiality of documents. Since BHEL--PSNR is party to the arbitration proceeding with M/s EM Services (i.e. third party regarding whom. the information has been sought), and the information sought forms the part of arbitration proceedings. Therefore, the information sought regarding details of arbitration case and related documents is exempt from disclosure under Section 02A of the Arbitration & Conciliation Act, 1996.
F. Without prejudice to foregoing, it is submitted that the information sought is of commercial nature. In case such information is disclosed, then confidentiality being maintained between the BHEL-PSNR and third party i.e. M/s EM Services would get affected and the competitive position of the third party would also get affected. Also, no larger public interest warrants the disclosure of information sought.
4Therefore, the information sought for by the Appellant is exempted for disclosure under Section 8(1) (d) of the RTI Act also.
Hon'bIe High Court of Delhi. while disposing a batch of Writ Petitions (C) (85/2010, 251/2010, 206/2010, 214/2010. 202/2010. 389/2010, 207/2010) and CM Nos. (156/2010. 5560/2011 526/2010, 392/2010, 4485/2010, 394/2010) has held that (enclosed as Annexure-A);
11.The petitioners have contended that the income tax returns and other information provided by the assessees during the course of assessment would be exempt from disclosure by virtue of section 8(1)(d). Section 8(1)(e) and 8(1)(j) of the Act. It is thus necessary to examine the applicability of each of the above provisions with respect to the information sought by the respondent.
14... It is thus, essential that information relating to business affairs, which is considered to be confidential by on assessee must remain so. unless It is necessary in larger public interest to disclose the same. If the nature of information is such that disclosure of which may have the propensity of harming one's competitive interests it would not be necessary to specifically ,show as to how disclosure of such information would, in fact, harm the competitive interest of a third party. In order to test the applicability of Section 8(1) (d) of the Act it is necessary to first and foremost determine the nature of information and if the nature of information is confidential information relating to the affairs of a private entity that is not obliged to be placed in public domain, then it is necessary to consider whether its disclosure can possibly have an adverse effect on third parties.
(emphasis supplied) G. Without prejudice to the foregoing, it is further submitted that Hon'ble Commission in the order passed in the matter of Manjunath Papanna Vs BHEL relied on the judgement delivered by the Hon'ble High court of Jharkhand, wherein it was held that the:
26... The question, therefore, that falls for consideration is as to whether disclosure of various documents submitted by the bidder is a trade secret or commercial confidence of 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 tender are invited by the public authority and on the basis of tender documents the eligibility of tender or a bidder 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 the Government refuse to disclose the document, the very purpose of 5 the Act will be frustrated. Moreover, disclosure of information, sought for by the Petitioner, cannot and shall not be trade secret or commercial confidence; rather disclosure of such information shall be in public interest, in as much as it will show the transparency in the activities of the Government.
(emphasis supplied) Hon'ble Commission relying on the above held that;
...The provision 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 'bk 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 PI0, after its completion...
(emphasis supplied) It is humbly submitted that the Honble High Court of Jharkhand has held "only the documents submitted by the bidder to secure the work order" as not exempted from disclosure under the provisions of RT1 Act. The findings and the order passed by the Hon'ble Commission to "disclose any information pertaining to project", traverses beyond the finding of the Hon'ble High Court of Jharkhand.
All the documents submitted by the tenderer/bidder culminates into final Contract. As BHEL has already provided the copy of contract along with its annexures to the RTI applicant, it has fully complied with the directions passed by the Hon'ble High Court in the aforesaid judgement (copy of Email dated 15.11.2022 enclosed as Annexure -B)....."
The Third party narrated that the Appellant being a sub-contractor for the work order executed between his company M/s EM service and BHEL , failed to complete the work on time and therefore, now there are arbitration proceedings pending before the Tribunal . He further added that the Appellant has sought information pertaining to the work awarded to his firm i.e. M/s EM Services namely, work order, invoices, letters/ communication therefore, being a third party; he is not entitled for information pertaining to a tender awarded by the BHEL .
Decision:
6The Commission based on a perusal of the facts on record and upon hearing the submissions of the parties finds that denial of information by the CPIO at first instance in response to points no. 1 -6 under Section 8(1)(d) of the RTI Act is appropriate. In this regard, relevant portion of Section 8(1)(d) of RTI Act is reproduced below for ready reference -
(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
A bare perusal of aforesaid exemption clause and also considering the fact that the primary essence of information sought are copies of all work orders along with T & C, all letter/communication endorsed by the contractor (EM Service) to BHEL and BHEL to Contractor; monthly RA bill containing detailed sheets of Up to date monthly invoice until the completion of the project; Details of monthly certificate quantity /bills paid by BHEL against RA bill; and Complete details of payment made (item-wise) against monthly certificate bills which in itself reflects that disclosure of such information may harm the business interests of the company and therefore, it attracts the applicability of Section 8(1)(d) of RTI Act.
In this regard, his attention is drawn towards a judgement of Hon'ble Delhi High Court regarding the scope and denial of information under Section 8(1)(d) of RTI Act in the matter of Naresh Trehan v. Rakesh Kumar Gupta (W.P.(c) 85/2010) dated 24.11.2014 wherein it was held as under -
"...14. xxxx It is, thus, essential that information relating to business affairs, which is considered to be confidential by an assessee must remain so, unless it is necessary in larger public interest to disclose the same. If the nature of information is such that disclosure of which may have the propensity of harming one's competitive interests, it would not be necessary to specifically show as to how disclosure of such information would, in fact, harm the competitive interest of a third party. In order to test the applicability of Section 8(1)(d) of the Act it is necessary to first and foremost determine the nature of information and if the nature of information is confidential information relating to the affairs of a private entity that is not obliged to be placed in public domain, then it is necessary to consider whether its disclosure can possibly have an adverse effect on third parties.....
xxxx"7
In addition to it, the Commission also cannot lose sight of the fact that details of all entire correspondences/opinions, etc. of averred third party work order also entails invasion of privacy of third party firm which attracts the exemption clause of Section 8(1)(j) of RTI Act. The same can be enmassed from a bare perusal of the text of Section 8(1)(j) of the RTI Act as under:
"8. Exemption from disclosure of information.--
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, xxx
(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information;.."
In this regard, attention of the Appellant is also drawn towards a judgment of the Hon'ble Supreme Court of India in the matter of Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010 wherein the import of "personal information" envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the same Court in the matter(s) of Canara Bank Vs. C.S. Shyam in Civil Appeal No.22 of 2009; Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794.The following was thus held:
"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion 8 of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive..."
As far as non-disclosure of information sought at point no. 7 on the plea that arbitration proceedings are under process; here, the bench would like to recall its previous decision on similar issue which was heard and disposed off bearing file no. CIC/MPORT/A/2020/670958 on 29.12.2021 with the following observations -
"The Commission based on a perusal of the facts on record observes that the issue for determination in the instant appeal is squarely covered by the decision of a coordinate bench in the matter of Baleshwar Kumar vs. Ordnance Factory Board, Nalanda (File No. CIC/CC/A/2016/000509/SD) dated 03.01.2017 wherein the following was held:
"Arbitration is a form of Alternate Dispute Resolution and one of the tenets of such dispute resolution is privacy and confidentiality. This is also apparent from Section 75 of the Arbitration & Conciliation Act, 1991 which states that:
'Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.' Now even so by virtue of Section 22 of the RTI Act, which also is the latter law in force, the above said position of law stands overridden, yet exemptions under Section 8 of the RTI Act allows for denial of information on certain grounds. In the facts of the present case, Commission deems it appropriate to invoke Section 8(1)(j) of the RTI Act in as much as the disclosure of information may cause unwarranted invasion of the privacy of the parties involved in the arbitration and further as a matter involving commercial implications, disclosure at the pendency stage of arbitration may also be detrimental to the interest of the government exchequer which in effect is public money."
Adverting to the rationale of the above quoted decision, the Commission finds that while the CPIO has adequately discharged the onus of justifying the denial of the information sought for in the instant RTI Application under Section 8(1)(j) of the RTI Act, there is no infirmity in the said denial in as much as the arbitration proceedings are pending and disclosure of the information sought for by the Appellant does not warrant any larger public interest.
Having observed as above, the Commission finds no scope of intervention in the matter as this stage."
9In view of the foregoing, no scope for further relief lies in the matter.
However, in the spirit of RTI Act, the CPIO is directed to share a copy of her latest written submission free of charge with the Appellant via email and also through speed post, immediately upon receipt of this order under due intimation to the Commission.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) हािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 10