Central Information Commission
Mr. S K Choudhary vs Delhi Transco Limited on 26 February, 2010
CENTRAL INFORMATION COMMISSION
Club Building, Opposite Ber Sarai Market,
Old JNU Campus, New Delhi - 110067.
Tel: +91-11-26161796
Decision No. CIC/SG/C/2009/001141/6992
Complaint No. CIC/SG/C/2009/001141
Complainant : Mr. S K Choudhary
42 DESU Colony,
Janak Puri,
New Delhi- 110058.
Respondent 1) : Mr. K.V. Krishna Kumar
Public Information Officer & DGM(HR) Delhi Transco Limited, Pension Trust, GNOCTD, Shakti Sadan, Kotla Road, New Delhi.
Respondent 2) Mr. K.G.Vishwanathan
Manager
Delhi Vidyut Board
ETBF- 2002 (Pension Trust)
RPH Office Complex,
New Delhi - 110002
RTI application filed on : 15/04/2009
PIO replied : No reply.
First Appeal filed on : 17/06/2009
Complaint filed on : 18/08/2009
Complaint notice issued on : 21/08/2009
Hearing Notice Issued on : 04/12/2009
Date of Hearing : 05/01/2010
Information Sought
a) Copy of documents in relation to formation of Pension Trust.
b) The procedure to collect funds from successor entities of DVB in lieu of pensionary benefits which need to be paid to the employees on and after superannuation.
c) The status of fund in pension Trust at the time of unbundling of DVB.
d) The number of pensioners at the time of unbundling of DVB.
e) The number of pensioners as on current date and the total available cash in Pension Trust.
f) Whether all distribution companies are contributing the prescribed amount towards pensionary benefits of erstwhile DVB employees.
g) Action taken by GNCTD to make up for the shortfall in funds of the Pension Trust.
Page 1 of 5Reply of the PIO No reply.
Grounds for First Appeal:
No information provided by the PIO.
Grounds for Complaint:
Non-receipt of information from the PIO.
Submission received from the PIO:
The PIO through his written submission mentioned the fact that DVB Employees Terminal Benefits Fund-2002 ie the Pension Trust was not under the administrative control of the department and therefore he was unable to provide information to the Appellant.
Submission received from the Complainant The Complainant mentioned that the RTI application was received by PIO's office and he did receive acknowledgement letters from the department. The Complainant also highlighted a point wherein the PIO could have forwarded RTI application to the concerned department rather than simply returning it back. Complainant has also tried to bring to the Commission's notice that no PIO has been appointed to deal with Pension Trust.
Relevant Facts emerging during Hearing held on 05 January 2010: The following were present:
Complainant: Mr. Satya Pal on behalf of Mr. S K Choudhary Respondent: Mr. K.V. Krishna Kumar, Public Information Officer & DGM(HR);
Mr. K.G.Vishwanathan, Manager DVB ETBF- 2002 (Pension Trust); The Complainant had filed the RTI application to the APIO of Delhi Transco Ltd. mentioning the name of Pension Trust. The APIO realized that this information is related to the DVB Employees Terminal Benefit Fund-2002 and hence he transferred the application to Manager (Pension Trust) under Section 6(3) on 27/04/2009. Mr. K.G.Vishwanathan DVB ETBF-2002 states that he received the RTI application only on 31/08/2009. Mr. K.G. Vishwanathan says that DVB ETBF-2002 has taken an opinion from standing counsel and submitted it before the Board of Trustees. The opinion of the Additional Solicitor General of India was also obtained which advised that DVB ETBF-2002 is not a public authority. The Commission asked Mr. Vishwanathan about the amount of Government Funding. Mr. K.G. Vishwanathan informed the Commission that the Delhi Vidyut Board (Govt. of Delhi undertaking) had provided Rs.443.10 Crores and the Delhi Government provided one time funding of Rs.886.00 Crores Mr. K.G.Vishwanathan accepted that they are using the office provided by Delhi Transco.
The Commission vide Decision No. CIC/SG/C/2009/001141/Interim dated 05/01/2010 directed Mr. K.G.Vishwanathan to send the audited income and expenditure statements and the balance sheets from the inception of DVB ETBF-2002 until present to the Commission to determine whether it is public authority. Mr. K.G.Vishwanathan was directed to send these financial statements to the Commission before 20 January 2010.
The Matter was adjourned.
Decision announced on 26 February 2010:Page 2 of 5
The Commission has received submissions dated 20/01/2010 from Mr. KG Vishwanathan, Manager on 01/02/2010. The Commission has perused the documents sent by Mr. KG Vishwanathan and the submissions made and documents submitted by the parties during the hearing. The main issue before the Commission is whether the DVB ETB Fund 2002 is a public authority within the ambit of the RTI Act or not. Section 2(h) of the RTI Act defines public authority as 2(h) "public authority" means any authority or body or institution of self- government established or constituted--
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes any--
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;
(emphasis added) Thus Section 2(h) (d) includes bodies controlled, or substantially financed by Government. The Commission will decide whether DVB ETB Fund is controlled or substantially funded by Government.
The Respondents have submitted a copy of the opinion given by the Additional Solicitor General of India Mr. Parag Tripathi (ASG) on which they have relied to refuse information to the Complainant. In this opinion the ASG has expressed several reasons why he believes that the DVB ETB Fund is not a public authority.
The ASG has mentioned Section 3(d) of the Tripartite Agreement under which the Trust was formed which states:
3(d) The Government shall create a Pension Fund in the form of a trust and the pensionary benefits of absorbed employees shall be paid out of such Pension fund.
1) The Principal Secretary (Power) of the GNCT of Delhi shall be the Chairperson of the Board of Trustees which shall include representatives of the Departments of finance, personnel, labour, the employees and experts in the relevant field to be nominated.
2) The procedure and the manner in which pensionary benefits are to be sanctioned and disbursed from the Pension Fund shall be determined by the Government on recommendation of the Board of Trustees.
3) The Government/DVB shall discharge their pensionary liability by paying in lumpsum a onetime payment to the Pension Fund Trust the pension or service gratuity and retirement gratuity for the service rendered till the date of transfer on the DVB employees in the successor entities.
4) The manner of sharing the financial liability on account of payment of pensionary benefits by the successor entities shall be determined by the Government.
5) The arrangements hereunder shall be applicable to the existing pensioners and to the existing employees on their superannuation in the new entities and shall not apply to the employees directly recruited by the new entities for Page 3 of 5 whom it shall devise its own pension scheme and make arrangements for funding and disbursing the pensionary benefits.
6) The balance of provident fund standing at the credit of the absorbed employees on the date of their absorption in the new entities shall, be transferred to the new provident fund Account of the employees to be remaintained and operated by the Trust.
According to the ASG, the Trust caters to no public function or purpose. It is exclusively maintained and run for the benefit of its members. The Commission does not find merit in this argument. Whether a body performs public functions or for public purpose is not a criterion to decide whether it is a public authority under Section 2(h) of the RTI Act. In fact, there are several institutions which perform public functions such as imparting education or providing medical facilities but they do not come within the ambit of the RTI Act as they are not public authorities. Hence the issue of whether a body performs a public function is a relevant criteria but it is not the deciding criteria to determine whether it is a public authority as defined by the RTI Act. The Commission feels that given that the Pension Trust provides terminal benefits to government servants, it certainly performs a public function, though this matter is not the decisive criteria to determine whether DVB ETF fund is a public authority.
The ASG has further stated that the Board of Trustees, which is the apex body for the Trust and that governs the Pension Trust, comprises predominantly of ex-officio Secretaries and Officers of the Government of National Capital Territory of Delhi (GNCTD). According to him, this has been done because the deficiency/liability of DVB to one-time corpus/funding to the tune of Rs. 886 crores was done by the GNCTD as a Scheme of unbundling. Elsewhere he states that the Member Trustees of the Government during the meetings of the Board of Trustees have repeatedly stated that the views of the Trustee would not mean the consent of the Government on the issue as the Trust was a wholly distinct and separate body formed under the Indian Trust Act.
These statements made by the ASG are to be analysed at two levels. Firstly, from the documents on records it appears that out of ten members of the Board of Trust, five persons are appointed by the Government ex-officio. The Principal Secretary (Power) is the Chairperson of the Pension Trust (as per the Tripartite Agreement); Chairman & MD, Delhi Transco, Principal Secretary (Finance), Secretary (Law) and Secretary (Labour) are the four other ex-officio members of the Pension Trust. Therefore five of the ten members of the Board owe their positions on the board due to their nomination by the Government. The five Government officers are expected to represent the Government. If 50% or more of the Board is made up of Government officers who are nominated by the Government, they are so nominated to represent the views of the Government. A Government officer, once nominated by the Government to perform certain functions, is expected to act in accordance with the government's position. The nominee discharges his duties not in a private capacity but as a representative of the Government. Like any other Government officer, he does not require directions from the government to carry out each of his duties - as a Government officer he is assumed to be acting on behalf of the Government. If he does not do so, he would be failing in his duty. The fact that the Trustees have made statements that their view does not reflect the view of the Government does not vitiate this position. Thus it can certainly be stated that the Government is in control of the Board of Trustees of the Pension Trust through its nominees.
Secondly, the Pension Trust has received Rs. 860 crores as one-time corpus from the GNCTD as is reflected in the Audited Annual Accounts of the Pension Trust for 2002-2003. During the Page 4 of 5 hearing it was submitted by the Respondent that the Trust received Rs.443.10 Crores from the Delhi Vidyut Board, GNCTD. Therefore, the Government has provided the Pension Trust Rs. 1303.10 crores to the Pension Trust in total. According to the Balance Sheet on 31/03/2008, Rs.1295.5 crores is the total amount available with the Pension Trust. This mean the one-time amount given by the GNCTD alone is more than 66% of the amount now available with the Pension Trust. Therefore, the Commission finds that the GNCTD substantially finances the Pension Trust.
The Commission comes to the conclusion that the Pension Trust is controlled and also substantially financed by the Government and thus the Pension Trust is a Public authority as defined by Section 2 (h)(i) of the RTI Act.
Complaint is allowed.
For the reasons stated above, the Pension Trust is a public authority according to the definition given in section 2(h)(i) of the RTI Act. The Pension Trust is directed to appoint a PIO and First Appellate Authority before 31 March 2010. The DVB ETB Fund is directed to provide the information to the Complainant before 15 April 2010 with a copy to the Commission.
A perusal of the information sought by the Complainant, it appears that most of the information sought by the Complainant is information that should be suo moto disclosed by the Respondent in accordance with its mandatory obligations under Section 4 of the RTI Act. The Commission directs the Pension Trust to ensure that it meet its obligations to suo moto disclose information under Section 4 of the RTI Act by 30 April 2010. A compliance report in this regard must be sent to the Commission before 07 May 2010.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi Information Commissioner 26 February 2010 Page 5 of 5