Central Information Commission
S Dinesh vs Reserve Bank Of India on 29 September, 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/RBIND/A/2022/115225
S DINESH
(State Bank of India) ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
RESERVE BANK OF INDIA,
NODAL CPIO, RTI CELL,
DEPARTMENT OF SUPERVISION,
CENTRE-1, WORLD TRADE CENTRE,
CUFFE PARADE, COLABA,
MUMBAI-400005 .... ितवादीगण /Respondent
Date of Hearing : 21/09/2023
Date of Decision : 21/09/2023
INFORMATION COMMISSIONER : Saroj Punhani
(Note: The instant appeal has been filed by the third party i.e. State Bank of
India aggrieved by an order passed by the FAA, RBI).
Relevant facts emerging from appeal:
RTI application filed on : 26/04/2019
CPIO replied on : 01/11/2021
First appeal filed on : 30/11/2021
First Appellate Authority order : 03/01/2022
2nd Appeal/Complaint dated : 25/03/2022
1
Information sought:
The RTI applicant Shri Girish Mittal filed an RTI application dated 26.04.2019 seeking the following information:
"(a)Kindly provide copies of inspection reports of ICICI Bank, AXIS Bank, Yes Bank, HDFC Bank & State Bank of India from, Bank of Baroda, Punjab National Bank, Union Bank of India from 1st April 2015 till date.
(b)Kindly provide copies of any show cause notices issued to banks mentioned in point (a), response to the show cause notices and action taken, if any, by RBL
(c) Kindly provide list of defaulters of loans greater than 50 crores as available with RBI.
(d)Copies of case files with file notings on various irregularities detected by RBI in case of Sahara Group of companies and erstwhile Bank of Rajasthan by these entities themselves and their known/unknown promoters.
(e)Kindly provide information on amount spent in form of fees of lawyers, out of pocket expenses along with any other charges spent by RBI in defending the cases against the orders of CIC in High Courts/Supreme Court.
Kindly provide list giving details in each case or provide copies of challans, invoices, bills etc with file notings, approvals et al. This information needs to be provided even if it is not available on consolidated basis and spread across various files.
(f)Kindly provide information on the directory of employees of RBI which is required to be declared as per 4(1)(b)(10) with their email ids. The details on website do not give their, mobile phone s(if paid by RBI) and email id."
The CPIO vide its letter dated 01.11.2021 had sent a notice u/s. 11 of the RTI Act to the Appellant bank i.e. State Bank of India stating as under:
"Please refer to our letter dated December 03, 2019 wherein we had issued a notice under Section 11(1) read with Section 11(2) of the Right to 2 Information Act, 2005 with respect to a RTI request No. RBIND/R/2019/51887 from Shri Girish Mittal, to enable you to make a written submission as to whether the information may be disclosed or not along with reasons for exemption from disclosure under any clause of RTI Act, 2005.
After considering your response dated 16.12.2019 to the above notice and in view of SC Order dated 28.04.2021 dismissing MA No. 2342 of 2019 along with other MAs filed to recall the judgement passed in Jayantilal Mistry matter dated 16.12.2015, we intend to disclose the Inspection report of your bank for the financial year 2015-16 to the applicant.
Hence, a Notice under Section 11(3) of the RTI Act 2005 is hereby given apprising you of the decision taken by CPIO in the matter."
Being dissatisfied, the Appellant bank through its authorized representative filed a First Appeal dated 30.11.2021. The FAA vide order dated 03.01.2022 upheld the reply and appeal is dismissed accordingly.
Feeling aggrieved and dissatisfied, the Appellant bank approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Sonal Purohit, DGM and Abhinav Rishi, Manager (Law) present in person.
Respondent: Abhishek Joshi, AGM and Suman Choudhary, Legal Officer present through Video-Conference.
Original RTI applicant not present.
The Appellant bank and the Respondent submitted their written submissions and the same are taken on record.
The Appellant bank during the hearing reiterated the contents of their instant second appeal and submitted as under:3
"A. In October 2010, several applicants sought copies of RAR's of various banks including that of the Appellant bank under the Act. The RAR's sought by the concerned RTI applicants are prepared by RBI pursuant to inspection/scrutiny conducted by its officers, under Section 35 of the Banking Regulation Act 1949, annually. The said annual inspection reports, also called RARS, contain comprehensive review of the performance operational frailties/ functioning of the banks by RBI in exercise of its supervisory and regulatory powers. The RAR's contain wide-ranging information, including business plans of the banks to customer details and legal compliance, it also contains requirement, if any, of regulatory intervention and risk assessment of various credit risks of the bank in question, by RB). Such inspection reports are not only irrelevant to the public at large, but also the information contained thereto are price sensitive and confidential. As a result, the information requests under the Act were denied by RBI on the grounds of economic interest. commercial confidence, fiduciary relationship, and public interest (under applicable exemptions provisions of the Act). Several applicants filed appeals before the Chief Information Commission inter alia challenging the denial of the disclosure of the RARS by RBI. B. Findings of the Apex Court: The issue was finally decided by the Hon'ble Apex court on 16.12.2015 in a Transfer Petition (91/2015) titled as Reserve Bank of India vs. Jayantilal N Mistry case, (2016) 3 SCC 525 (Mistry Case/Judgment"). The findings of the learned Court were broadly made on two aspects of the Act and have been recorded as under- • Fiduciary relationship [Concerns Section 8(1) (e) of the Act] Economic interests [Concerns Section 8(1) (a) of the Act] C. Contempt Petitions before the Hon'ble Apex Court: Thereafter, one Mr. Girish Mittal, filed a Contempt Petition being Contempt Petition No. (C) No.928 of 2016 against RBI and before the Hon'ble Apex Court inter alia alleging that RBI have withheld certain information in spite of the directions of the Hon'ble Court in the Judgment of Jayantilal N. Mistry and therefore they have committed contempt of the judgement of the Hon'ble Court. Further, another Contempt Petition L.e., Contempt Petition (C) No.59 of 2017 was filed against RBI inter alia alleging that RBI had uploaded a Disclosure Policy dated 30.11.2016 on its website by which the Public Information Officers were directed not to disclose virtually all kinds of information, which were in violation of the judgment in Jayantilal N. Mistry case.
As a result, on 26.04.2019, the Hon'ble Apex Court passed the judgment in Girish Mittal v. Paravati V. Sundaram, 2019 SCC OnLine SC 607 (Girish Mittal case'), wherein it was inter alia held that RBI had committed contempt of the Court by exempting disclosure of information as directed in Jayantilal N. Mistry case, in its disclosure policy dated 18.06.2018. Importantly, the Hon'ble Court also stated:
"We are not persuaded to accept the submission of Mr. Gupta that the judgment 4 dated 16.12.2015 requires reconsideration as we cannot consider the said submission while deciding the contempt petitions."
B. While the responses dated: 16.12.2019, 30.11.2021, 25.03.2022 given by the Appellant Bank to notice dated: 03.12.2019, 01.11.2021, 03.01.2022 issued by the CPIO and FAA RBI were categorical in as much as it cited applicable exemptions provisions contained in the Act as well as decisions of the Hon'ble CIC/other forums which squarely cover the subject matter of the instant RTI application, there has been no discussion/analysis/views recorded by the CPIO or FAA RBI, in their orders dated: 01.11.2021 and 03.01.2022. The RBI FAA order has only given emphasis on the Apex court judgment in the Mistry Case. It is submitted that the entire information contained in the Document have to be seen as whole in order to understand the actual impact their disclosure would have on the Bank and to see as to how, there disclosure would fall within the exemptions provided under Section 8(1) (a), (d). (e) & (j) of the Act. Thus, precise/specific information recorded in the Documents could not have been culled out, as the entire information in the Documents are such, which will attract applicability of Section 8(1) (a), (d), (e.) &
(j) of the Act. The information recorded in the Document was hence requested to be considered in toto and not in an abstract/standalone form-The same does not seem to have been done. C. The public disclosure to any applicant who may have vested interests in the Document received pursuant to the RTI application has the potential to create panic and spread misinformation. Such Information is thus exempt under Section 8 of the RTI Act and disclosure whereof would not serve any larger public interest. Rather, disclosure of such Documents would adversely affect the position of the banks, including the Appellant bank in a highly competitive banking sector in our country. D. As has been detailed above, pursuant to the ratio in Jayantilul N. Mistry case and the Girish Mittal case, RBI disclosed complete RARS, of the Appellant Bank for the years 2012, 2013, 2014, 2015, without complying with the provisions of the RTI Act or the principles of natural justice, which actions are completely arbitrary and therefore violative of Article 14 of the Constitution. The Appellant thus apprehends that the same may be done in the instant case/as regards the instant Applicant also."
The Respondent, during the hearing, reiterated the contents of their written submissions which states as under:
"7. It is submitted that the Hon'ble Supreme Court in Reserve Bank of India v. Jayantilal N Mistry & Ors. (2016) 3 SCC 525, referred to the stand of RBI on confidentiality provisions under various statutory enactments. As regards the nature of information contained in AFI/scrutiny reports or related documents, etc. 5 for which exemption from disclosure was claimed by the Reserve Bank under clauses (a), (d) and (e) of Section 8(1) of the RTI Act, the Supreme Court has specifically held that since such information is provided to the RBI under the mandate of law, the claim of exemption is not sustainable. The following observation of the Hon'ble Supreme Court in Reserve Bank of India & Ors. v. Jayantilal N. Mistry & Ors., (2016) 3 SCC 525 is pertinent in this regard "RBI is supposed to uphold public interest and not the interest of individual banks. RBI is clearly not in any fiduciary relationship with any bank. RBI has no legal duty to maximize the benefit of any public sector or private sector bank, and thus there is no relationship of trust' between them. RBI has a statutory duty to uphold the interest of the public at large, the depositors, the country's economy and the banking sector Thus, RBI ought to act with transparency and not hide information that might embarrass individual banks. It is duty bound to comply with the provisions of the RTI Act and disclose the information sought by the respondents herein7. Further it is also submitted that, in Girish Mittal v. Parvathy Sundaram and Another Xxxxxxxxx
8. The exemption under Section 8 (1) () of the RTI Act has been considered by the Delhi High Court in Naresh Trehan v Rakesh Kumar Gupta, 216 (2015) DLT 156 wherein it held that the same does not extend to information relating to companies. 9. It is submitted that it is true that the Supreme Court has by its order dated Septem- ber 30, 2022 in IA No. 68597 and IA No. 51632/2021 in WP (Civil) No. 1159 of 2019 held against the preliminary objection raised on the maintainability of the pending writ petitions. Consequently, the Supreme Court will now hear the matter on merit. In our view, this would not mean that the judgement of the SC in Jayantilal Mistry's case does not continue to be governing the issue. Therefore, it will not be possible for the banks to plead that the judgement in Jayantilal Mistry's case has been 'overruled by the order dated September 30, 2022".
Decision:
In the facts of the instant case, it is pertinent to note that a decision of a coordinate bench of the Commission in the matter of various third-party banks vs. RBI vide File No. CIC/RBIND/A/2021/152460 + Ors. dated 05.05.2022 covers a detailed discussion inter alia on the same nature of information sought for from the RBI and the reliance placed by RBI on the Jayantilal Mistry case. Suffice to say that the issues raised in the instant case are encapsulated in that same discussion of the coordinate bench in the following manner:6
"39. A comprehensive view has to be taken on the objection filed by the institutions. These objectives has to be deliberated and adjudicated in the light of Jayantilal Mistry's case and other judicial pronouncements relevant in such matter, some of which have been referred by the Commission in the above parts as well. The Commission while examining various objections realize that the Writ Petitions filed before the Hon'ble Supreme Court of India is seeking directions of the Supreme Court for non-disclosure of certain aspects of these audit/inspection report and any such guidance in these Writ Petitions will have direct bearing and provide further clarity to the CPIO/FAA in adjudicating various aspects of disclosure/non-disclosure of reports or the information/data which are part of these reports under the provisions of the RTI Act. The Commission takes note that all the cases/second appeals filed herein are based on interpretations of RBI Vs. Jayantilal Mistry case and other relevant judicial pronouncements requesting for full disclosure vis-à-vis with exemptions under Section 8(1) of the RTI Act for non- disclosure of full or parts of these reports.
40. In view of the above observations, the Commission is of the view that the reports generated in the hands of regulatory public authority in discharge of its statutory obligations are information under Section 2 (f) of the RTI Act, as the regulator and the regulated entities are not governed by fiduciary relationship. The orders of the Commission to their effect has been upheld by the Hon'ble Supreme Court in Jayantilal Mistry's case and the position is unchanged even today. Various objections filed by banks/financial institutions, to be examined, analyzed and adjudicated upon, are related to various data and information submitted to the Reserve Bank of India by these financial institutions explaining their operations, commercial decisions, clients data etc. under statutory obligations can be disclosed as such. There are apparently two set of such information which have been shared by the institutions with the regulator under statutory obligation. First is the information/data of clients relating to their business/commercial operations, financial transactions, business and commercial strategy which is shared by clients with financial institutions in full trust and confidence and is held by them in fiduciary capacity, protected from disclosure under the RTI Act in their hands. Second set is the information relating to business strategy, decisions, transactions, other operational data etc. of financial institutions have been bearing on their competitive position which also enjoys the exemption from disclosure in their hands, if it is a public authority or otherwise, under the RTI Act. Some of such data, on case to case basis be sensitive enough for protection of national interest. The Commission is of the view that the protection of disclosure of information under Section 8(1) of the RTI Act, 2005 in the hands of 7 financial institutions does not evaporate once such data/information is shared, in good faith and trust, with the regulator under statutory obligation. Various observations of Hon'ble Supreme Court in Jayantilal Mistry's case also does not indicate so and decision of the regulator to consider redacting such data/information while disclosing the reports is aligned with this and other judicial pronouncements of Supreme Court and High Courts.
41. The Commission has already outlined the deficiency in the conduct of the CPIO/FAA while hearing such matters and hence is of the opinion that due care has to be taken by according opportunity of personal hearing and making reasoned order with reference to the objections in the hands of the CPIO and later in the hands of FAA, if any appeal is preferred. Hence, the CPIO will be required to adjudicate such RTI applications in the light of the observations of the Commission afresh. The Commission also expects that the CPIO will take view on various objections filed by the Banks and Financial Institutions and submissions made by applicant to reach the decision in favour or against redaction of various parts of the report on case to case basis. He has to factor the observation of Hon'ble Supreme Court in Jayantilal Mistry case and other relevant judgments, some of which have been referred in this order as well. Hence, with these observations the orders passed by the CPIO and FAA in these matters are set aside and the cases are being remanded to the CPIO for adjudication afresh. (Emphasis Supplied)
42. It is amply clear that Writ Petition Nos. 1159/2019 and 768/2021 and others tagged are admitted in Hon'ble Supreme Court wherein guidance and direction has been sought on non-disclosure of certain type of information which are essentially the part of the Annual Inspection Report/RAR, etc. These petitions also seek protection of interim communication between regulator and the regulated entity in the process of finalization of these reports or otherwise. It is obvious that decision in these Writ Petitions will provide clarity and guidance to the Public Authority on redaction/non-disclosure of a set of information inspite of being part of these reports which are open to disclosure. At this stage, any decision by the Public Authority will amount to pre-judging the issues pending admitted Writ Petitions before the Hon'ble Supreme Court. Various banks, financial institutions, respondent public authority and the RTI applicant have already impleaded party and are presenting their arguments before the Apex Court.
43. Hence, any decision of redaction or disclosure of information, without waiting for decision in the Writ Petition Nos. 1159/2019 and 768/2021 and others tagged may cause irrevocable damage against right of privacy and protection of commercial interest. Hence, the respondent public authority if expedient may wait for the outcome in Writ Petition Nos. 1159/2019 and 768/2021 and others 8 tagged or seek clarification from the Hon'ble Court and accordingly decide these RTI applications by following process as enumerated in the earlier paras by the Commission in the interest of principles of natural justice. While disclosing the information they should be cautious in taking a considerate view balancing right to privacy, protection of national and commercial interest on one hand vis-à-vis larger public interest. (Emphasis Supplied)
44. It is further observed that similar view has also been taken by the Division Bench of the Commission in file bearing nos. CIC/VS/A/2013/001488 and CIC/VS/A/2013/001805 dated 11.05.2017 wherein the Commission observed that 'Having considered the submissions of both the parties, the Commission observes that since a similar issue is pending adjudication before the Hon'ble Supreme Court in the matter of Central for Public Interest Litigation Vs. Housing & Urban Development Corporation Ltd. &Ors., it would be judicious to await the final outcome from the Hon'ble Supreme Court. However, on receipt of the final outcome from the Hon'ble Supreme Court in the matter, the appellant shall be at liberty to file second appeal afresh, if he so desires. The instant appeals are disposed of'."
The above decision is therefore applicable to the instant case and no separate line of adjudication is warranted in the matter. The stipulations contained in File No. CIC/RBIND/A/2021/152460 + Ors. dated 05.05.2022 stands endorsed to the Respondent CPIO with emphasis on para 41 & 43 supplied as above .
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 / 9