Central Information Commission
Gopal Krishan Gupta vs Indian Air Force on 29 September, 2023
क य सच ु ना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मु नरका, नई द ल - 110067
Munirka, New Delhi-110067
File no.: CIC/IAIRF/A/2022/129908+
CIC/IAIRF/C/2022/140238
In the matter of
Gopal Krishan Gupta
... Appellant/ Complainant
VS
CPIO & Wing Commander
Indian Air Force
HQ South Western Air Command,
Vayu Shakti Nagar, Gandhinagar - 382042
... Respondent
File No. : 129908 140238
RTI application filed on : 19/03/2022 19/03/2022
CPIO replied on : 26/04/2022 26/04/2022
First appeal filed on : 05/05/2022 05/05/2022
First Appellate Authority order : 07/06/2022 07/06/2022
Second Appeal/Complaint filed on : 20/06/2022 21/08/2022
Date of Hearing : 28/02/2023, 28/02/2023
25/09/2023 25/09/2023
Date of Decision 28/02/2023 28/02/2023
29/09/2023 29/09/2023
The following were present:
Appellant/Complainant: Present over VC
Respondent: Wing Commander Sandeep Sharma, CPIO, present over VC at CIC
Information Sought:
The Appellant / Complainant has sought the following information:
a. Provide copies of all the correspondence made in respect of the
representation/appeal dated 31/08/2021, its reminder dated 08/11/2021 and
application dated 19/01/2022, made before the Chief of Air Staff, in respect of
which comments have also been sought from HQ SWAC IAF by the Air HQ (VB),
New Delhi.
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b. Provide copies of para wise comments, if any, in respect of the
representation / appeal dated 31/08/2021, its reminder dated 08/11/2021 and
application dated 19/01/2022.
c. Provide name, designation and office address of the officials, whose
assistance has been sought by CPIO, HQ SWAC on the RTI applications dated
10/07/2021 and 16/10/2021.
d. And other related information.
Grounds for Second Appeal / Complaint
The CPIO did not provide the desired information.
Submissions made by Appellant / Complainant and Respondent during
Hearing:
The appellant submitted that he had not received the written submissions.
The CPIO vide written submissions dated 20.02.2023 provided the factual
background of the case.
During the hearing, he submitted that they have not received the
representation/appeal dated 31.08.2021, nor its reminder dated 08.11.2021.
They only received the letter dated 19.01.2022.
The appellant contended that he had sent the correspondence through speed
post. Moreover, the non receipt was not mentioned in the initial reply. He also
submitted that the denial of information is not correct.
Observations:
The CPIO had denied the information u/s 8(1)(e) of the RTI Act for points (a)
and (b). In respect of point no. (c) information was denied u/s 8(1)(j) of the RTI
Act. In respect of point no. (d) information sought was stated to be not
available. The FAA also concurred with the CPIO's reply. He also mentioned
that since the appellant was dismissed from service in the year 2003 he is now
asking for his dismissal order dated 16.10.2003. The CPIO SWAC had submitted
before the FAA that sincere efforts were made in tracing the dismissal order
SWAC/C 3420/4/P1 dated 16 Oct 2003, but the same could not be found in
their records. However, copy of POR Sl no. 27WG/NE/09/2003 for dismissal
and copy of Dismissal Certificate dated 25 June 2004 which are available have
already been provided to the appellant on 06.01.2022.
He was further informed that the information sought by the appellant in his
RTI application dated 19.03.2022 are concerned with official/inter
departmental communication and are exempted u/s 8(1)(e) and (j) of the RTI
Act which the CPIO has informed in his reply dated 26.04.2022.
It is relevant to mention here that Sec 8(1)(e) was applied to points (a) and (b)
without proper justification, in respect of the rest of the points the reply given
was correct.
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Decision:
The CPIO is accordingly directed to send a copy of the written submissions and
a revised reply on points no. (a) and (b) explaining why the information sought
is treated as exempted, also as to which letters were received and which were
not. The reply should be sent within 7 days from the date of receipt of this
order.
The appeals are disposed of accordingly.
Note: The Appellant/Complainant approached the Hon'ble High Court of
Punjab and Haryana with a prayer to set aside the order of the Commission
dated 28.02.2023 to the extent that the appeals have been disposed off be set
aside with a direction to the Central Information Commission to pass a final
order after considering the reply filed by the Respondent in pursuance of the
directions issued by the Information Commissioner to the CPIO, more so, with
respect to point Nos (a) and (b).
The Hon'ble High Court of Punjab and Haryana vide order in CWP No 14977-
2023 decided on 17.07,2023 and held as under:
"9. A conjoint reading of the above reproduced provisions would show
that once a second appeal has been filed by an aggrieved person, then,
after considering all the aspects, the matter is required to be finally
adjudicated. In case, the Information Commissioner is of the opinion that
the ingredients, as specified in Section 20 of the RTI Act are met,
appropriate action is also required to be taken. In the present case, after
prima facie holding in favour of the petitioner with respect to points No.
(a) and (b) and after directing the CPIO to file a revised reply, the appeals
have been disposed of by respondent No.2 without waiting for the said
reply and without finally adjudicating the matter and thus, to the said
extent, the impugned order deserves to be set aside
10. Keeping in view the above said facts and circumstances, the present
petition is partly allowed and the order dated 28.02.2023 (Annexure P-
11) to the extent that the statutory second appeal filed by the petitioner
has been disposed of, is set aside and a direction is issued to the Central
Information Commission to finally adjudicate the said appeal after taking
into consideration the reply filed by the authorities in response to the
directions given by the Commissioner and after considering the plea
raised by both the parties in accordance with law.
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11. It is made clear that this Court has not opined on the merits of the
case and the concerned authority would decide the matter
independently, in accordance with law."
Consequent upon demitting of charge of Information Commissioner Mrs
Vanaja N Sarna, reallocation of Second Appeals/ Complaints of Ministry of
Defence to Shri Y.K. Sinha, Chief Information Commissioner was notified by
the Commission on 20.06.2023. On receipt of the order of the Hon'ble High
Court of Punjab and Haryana dated 21.07.2023, the registry of this bench vide
notice dated 18.08.2023 initially listed the matter for hearing on 12.09.2023
which was later cancelled due to administrative reasons on 06.09.2023.
Thereafter, vide notice dated 12.09.2023, the matter was listed for
25.09.2023.
Facts emerging during the hearing on 25.09.2023
1. In compliance of the direction of the Commission dated 28.02.2023, the following reply on points a and b of the RTI application was provided by the CPIO and Wing Commander, South Western Air Command, Gandhinagar vide letter dated 13.03.2023:
"Revised Reply to Para {a) & (b) of RTI application dated 19 March 2022:
4 WHEREAS, it is intimated that no letter dated 31 August 2021 or its reminder dated 08 November 2021 have been received at this Headquarters. However the application dated 19 January 2022 submitted by appellant was received at Air HO (VB) wherein, the appellant had mainly sought the information which was regarding his dismissal order issued vide SWAC/C 3420/1/P1 dated 16 October 2003.
Parawise comments on the said application were asked by Jt. Judge Advocate General, Air Headquarters, IAF from Command Discipline Officer, HQ SWAC, IAF. The comments on the application dated 19 January 2022 were provided by the Command Discipline Officer, HQ SWAC, IAF to Jt Judge Advocate General, Air Headquarters, IAF on 04 March 2022.
5. AND WHEREAS. the appellant vide para 3 (a) & (b) of his RTI application dated 19 March 2022 had asked to provide the copies of all correspondence made in respect of ibid representation dated 19 January 2022.
46 NOW THEREFORE, it is submitted that the comments provided by Command Discipline Officer, HQ SWAC, IAF to Jt Judge Advocate General, Air Headquarters, IAF on the ibid representation contains the internal departmental communication and is only for internal departmental guidance before final disposal of the said representation by Air HQ, same is held by the public authority in fiduciary relationship and no larger public interest is involved, the same is exempted under section 8(1) (e) of the RTI Act, 2005.
7 In this regard, Hon'ble CIC in the case of Rakesh Kumar Singh and Others versus Harish Chander, Assistant Director and Others is relevant wherein; delineating the scope of Section 8(1}/e) of RTI Act, 2005, the Hon'ble CIC held that, "the word fiduciary is derived from the Latin fiducia meaning trust. a person (including a juristic person such as Government, University or Bank) who has the power and obligation to act for another under circumstances which require total trust good faith and honesty. The most common example of such a relationship is the trustees of a trust, but fiduciaries can include business advisers, attorneys, guardians, administrators, directors of a company, public servants in relation to a Government and senior managers of a firm/company etc. The fiduciary can also be one of moral or personal responsibility due to the superior knowledge and training of the fiduciary as compared to the one whose affairs the fiduciary is handling. In short, it is a relationship wherein one person places complete confidence in another in regard to a particular transaction or one's general affairs of business."
8 Hon'ble Supreme Court in case of Aditya Bandopadhyay vs CBSE has clarified that "A fiduciary relationship in which one person is under a duty to act for the benefit of the other on matter within the scope of the relationship. Fiduciary relationships- such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client require the highest duty of care. Fiduciary relationship usually arises in one of the four situations: (1) When one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has rationally been recognised as involving fiduciary duties, as with a lawyer and a client of a stockbroker and a customer."
59 In the light of above, it is reiterated that the appellant had preferred a representation to Air Headquarters and Air Headquarters had sought assistance internally to forward final reply to the appellant. The internal communication to prepare final reply on the said representation has no larger public interest involved and is held in fiduciary capacity which is exempted under section 8(1)(e) of the RTI Act, 2005."
2. In addition, a written submission was also received from the CPIO and Squadron Leader, South Western Air Command, Indian Air Force, vide letter dated 05.09.2023, wherein notwithstanding the above arguments it was stated that in compliance with the direction of the Commission in another matter in CIC/IAIRF/A/2022/124723 and CIC/IAIRF/C/2022/140774 dated 28.02.2023, the CPIO Air HQ has already provided the information sought in point a and b of this RTI application vide letter dated 07.03.2023. Hence, no cause of action remains in this matter.
3. The Appellant participated in the hearing through video conference. He argued that no information was provided by Respondent, HQ, SWAC, IAF, in compliance with the order of the CIC, till date. In addition, he referred to his written submission dated 25.09.2023 submitted to the Commission during the hearing, the relevant extracts of which are mentioned as under:
"HQ SWAC, IAF
a) In order to corroborate the authenticity of information's supplied by Wing Commander S.K. Ojha, CPIO HQ (VB), New Delhi, the petitioner vide its another RTI application dated 19.03.2022 has also asked certain information's/documents from the CPIO of HQ SWAC, IAF, Gandhi Nagar, Gujrat in the shape of attested copies, in which Wing Commander Gaurav Kaushish, CPIO of HQ SWAC, IAF, Gandhi Nagar, Gujrat vides its reply letter no. SWAC/3451/2-F/17/22/42/PIO dated 26.04.2022 intentionally, deliberately and with corrupt motives has withheld the desired information's by replying that, "Information sought is official communication held with the public office in fiduciary relationship. No public interest warrants the disclosure of such information. The disclosure of such information is exempted under Sec 8 (1) (e) & (j) of the RTI Act, 2005". The First Appellant Authority (being the Head of the same department) has endorsed the stand of his subordinate just like as "Birds of a feather flock together."6
b) The Right to Information finds its root in the Fundamental Right which no one is supposed to violate but respondents have done that by malafide denying the information by invoking the provisions of Section 8 (1) (e) & (j) of the RTI Act, 2005, whereas in fact such plea, in the facts and circumstances of the case, was not available to them as the information's sought under RTI Act, 2005 is neither confidential nor the appellant/complainant is a stranger or a third party in this case but a beneficiary as the desired information's relates to him only and he is entitled to know the reasons for disposal of his representation/appeal dated 31.08.2021, its reminder dated 08.11.2021 and the complaint/application dated 19.01.2022, preferred before the Chief of Air Staff. Because the reasons are a link between the material placed before the concerned authorities and the conclusions it arrives at. Under Section 4 (1) (d) of RTI Act, 2005, a public authority is required to provide reasons for its administrative and quashi judicial decisions to affected persons. Noting made on files as part of discharge of official functions was a public activity and accessible under the RTI Act, 2005. Since, in the present case, the appellant is a beneficiary and an affected party, it is incumbent upon the respondents to supply all the papers and documents relating to the issue. In case titled Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, 2020 (5) SCC 481, the Constitution Bench of the Hon'ble Supreme Court has observed that,
32. ........ This Court held that the exemption under section 8(1)(e) of the RTI Act does not apply to beneficiaries regarding whom the fiduciary holds information. In other words, information available with the public authority relating to beneficiaries cannot be withheld from or denied to the beneficiaries themselves. A fiduciary would, ergo, be duty-bound to make thorough disclosure of all relevant facts of all transactions between them in a fiduciary relationship to the beneficiary.
58. Reference can also be made to Aditya Bandopadhyay (supra), as discussed earlier in paragraph 32, where this Court has held that while a fiduciary could not withhold information from the beneficiary in whose benefit he holds such information, he/she owed a duty to the beneficiary to not disclose the same to anyone else. This exposition of the Court equally reconciles the right to know with the rights to privacy under clause (j) to Section 8(1) of the RTI Act.
77. In Campbell (supra), reference was made to the Press Complaints Commission Code of Practice to further elucidate on the test of public 7 interest which stands at the intersection of freedom of expression and the privacy rights of an individual to hold that:
"1. Public interest includes:
(i) Detecting or exposing crime or a serious misdemeanor.
(ii) Protecting public health and safety.
(ili) Preventing the public from being misled by some statement or action of an individual or organization...."
79. The last aspect in the context of public interest test would be in the form of clarification as to the effect of sub-section (2) to Section 6 of the RTI Act which does not require the information seeker to give any reason for making a request for the information. Clearly, 'motive' and 'purpose' for making the request for information is irrelevant, and being extraneous cannot be a ground for refusing the information. However, this is not to state that 'motive' and 'purpose' may not be relevant factor while applying the public interest test in case of qualified exemptions governed by the public interest test. It is in this context that this Court in Aditya Bandopadhyay (supra) has held that beneficiary cannot be denied personal information relating to him.
Similarly, in other cases, public interest may weigh in favour of the disclosure when the information sought may be of special interest or special significance to the applicant. It could equally be a negative factor when the 'motive' and 'purpose' is vexatious or it is a case of clear abuse of law.
c) The success of RTI depends upon the good faith of the users and sincere implementation of the Act by the authorities concerned and there should be no game of hide-and-seek. The RTI Act provides for a free access to information with the object of making governance more transparent and accountable. Despite the settled law by the Constitution Bench of the Hon'ble Supreme Court and various Hon'ble High Courts, which is otherwise binding under Article 141 & 215 of the Constitution of India, the AF authorities have knowingly created a sheer mockery of the letter and spirit of RTI Act, 2005 by creating a situation of impasse by each of their whimsical approach towards the RTI application under reference. The desired information's has been deliberately withheld by the Air Force authorities who has failed to explain what the confidentially they are trying to protect it. No civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The omission and commission created by 8 AF authorities caused not only grave miscarriage of justice to the appellant/ complainant but also comes under the Court of Contempt Act.
In Case titled Madan Lal Mirg v. Dinesh Singh, Joint Commissioner (FFR) & Appellate Authority, M/o Home Affairs, Lok Nayak Bhawan, New Delhi F.No. CIC/AT/A/2006/00052 decided on 25.05.2006, while allowing the appellant to access to the requisite information's, the CIC has observed that,
8. This case now before us appears to be one in which we have a lurking suspicion that some information is being designedly denied to the appellant. We do not wish to speculate about the reasons for this covert denial, but we are left with a feeling that a citizen's right to know is under threat.
In Writ Petition no. 17677 of 2010 titled as The Tamil Nadu Public Service Commission v. P. Muthian Deputy Collector (Retired), while dealing with well versed tactic of official not to give information, the Madras High Court has observed that "Now a day's officials are used to adopt tactic answer in mechanical manner that information sought for is exempted without actually ascertaining as to whether information sought falls within ambit of said provision. Such Officers must be taught a lesson and are unfit to hold the post of Public Information Officer or any other post in connection with the discharge of duties under RTI Act and they should be shown the doors, so that it will be a lesson for other Officers to act in accordance with the terms of the Act, failing which they may also face the similar or more consequences."
3. In view of the above, the written submissions may please be taken on records for ready reference in the interest of justice, law and equity and all the above noted cases may be allow as prayed for."
4. The Respondent represented by Wg CDR Sandeep Sharma, CPIO, SWAC, Gandhinagar and SGT Nadeem Ahmed, CPIO Section, SWAC, Gandhinagar participated in the hearing through video conference. Shri Sharma reiterated his written submission dated 13.03.2023 and stated that the earlier direction of the CIC has been suitably complied with. Regarding the letter dated 31.08.2021 or its reminder dated 08.11.2021 he stated that the same were not received by the SWAC. With regard to the correspondence between Air HQ and SWAC, Gandhinagar on 19.03.2022 he stated although they had denied the information u/s 8 (1) (e) being internal correspondence held in a fiduciary 9 capacity, the information was already provided by D/o Personnel Services, Air HQ, New Delhi hence no cause of action remains in the matter.
Decision
5. In the light of the facts of the case and the submissions made by both the parties and taking into consideration the directions of the Hon'ble High Court of Punjab and Haryana, it is clarified at the outset that the Commission herein is only examining the limited issue of compliance of the earlier order pronounced by its predecessor bench. The orders passed herein are final and binding upon parties as per Section 19 (7) of the RTI Act, 2005 and no fresh adjudication is made on points where the reply was found to be correct by the predecessor bench as the same would amount to reviewing the earlier decision which is beyond the powers of this Commission as per the judgement of the Hon'ble High Court of Delhi in DDA vs. CIC and Anr. WP (C) 12714/2009 Decided On: 21.05.2010.
6. On perusal of the records, the Commission observes that vide its earlier order dated 28.02.2023, the Commission had directed the CPIO, SWAC, Gandhinagar to provide a revised reply on points a and b explaining why the information sought is treated as exempted and particulars of the letters which were received/ not received.
7. The CPIO, SWAC, Gandhinagar vide its reply and written submission dated 13.03.2023 and 05.09.2023 respectively has provided a detailed explanation to the Commission regarding the particulars of letters received/ not received. Regarding the exemption claimed u/s 8 (1) (e) for denying correspondence between SWAC, Gandhinagar and Jt JAG (Air) and Air HQ, New Delhi, on the Appellant's representation dated 19.02.2022 the Commission after perusal of the records finds that the exemption on the ground that the Appellant was seeking internal correspondence was claimed incorrectly.
8. The legal position regarding existence of fiduciary relationship has been long settled by the Hon'ble Supreme Court in Central Board of Secondary Education & Anr. vs. Aditya Bandopadhyay &Ors., (2011) 8 SCC 497. That was a case where the petitioner in the writ petition had made an application for inspection and revaluation of the answer book. While dealing with the contention of the CBSE that the examining body holds the evaluated answer books in a fiduciary relationship, the Supreme Court had held as follows:-
41. In a philosophical and very wide sense, examining bodies can be said to act in a fiduciary capacity, with reference to students who participate 10 in an examination, as a government does while governing its citizens or as the present generation does with reference to the future generation while preserving the environment. But the words 'information available to a person in his fiduciary relationship' are used in Section 8(1)(e) of RTI Act in its normal and well recognized sense, that is to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary - a trustee with reference to the beneficiary of the trust, a guardian with reference to a minor/physically/infirm/mentally challenged, a parent with reference to a child, a lawyer or a chartered accountant with reference to a client, a doctor or nurse with reference to a patient, an agent with reference to a principal, a partner with reference to another partner, a director of a company with reference to a share-holder, an executor with reference to a legatee, a receiver with reference to the parties to a lis, an employer with reference to the confidential information relating to the employee, and an employee with reference to business dealings/transaction of the employer. We do not find that kind of fiduciary"
9. Existence of fiduciary relationship between a lawyer and a client is further explained by the Hon'ble High Court of Delhi in Union of India vs Subhash Chandra Aggarwal, LPA 168/2015 and Union of India vs R K Jain LPA 199/ 2015 decided on 03.02.2017 where the Court while adjudicating if there exists a fiduciary relationship between the Attorney General of India (AGI) and the Government of India held as under:
"21. However, it cannot be ignored that the predominant function of the AGI is to give advice upon legal matters, to appear in court as stated, i.e. perform the duties akin to an Advocate/Senior Advocate. The acts which have been noted by the learned Single Judge as not forming part of the duties as an Advocate, namely, that the Supreme court may take action for criminal contempt on a motion made by the AGI or that the AGI is an ex officio member of the Bar Council of India represent a small proportion of the duties of an AGI. Essentially, the function being that akin to an Advocate of the Government of India, he is in a fiduciary relationship with the Government of India and cannot put in the public domain his opinions or the materials forwarded to him by the Government of India.
22. Reference in this context may be had to Section 126 of the Evidence Act which reads as follows:- ― 126. Professional communica ons.--No barrister, attorney, pleader or vakil shall at any time be permitted, unless 11 with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment: Provided that nothing in this section shall protect from disclosure-- (1) Any such communication made in furtherance of any 1[illegal] purpose; 2[illegal] purpose;" (2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment. It is immaterial whether the attention of such barrister, 2[pleader], attorney or vakil was or was not directed to such fact by or on behalf of his client. Explanation.--The obligation stated in this section continues after the employment has ceased.
24. Similarly in the case of Kokkanda B. Poondacha & Ors. vs. K.D.Ganapathi & Anr., (2011) 12 SCC 600 the Supreme Court held as follows:-
12. At this stage, we may also advert to the nature of relationship between a lawyer and his client, which is solely founded on trust and confidence. A lawyer cannot pass on the confidential information to anyone else. This is so because he is a fiduciary of his client, who reposes trust and confidence in the lawyer.
Therefore, he has a duty to fulfil all his obligations towards his client with care and act in good faith. Since the client entrusts the whole obligation of handling legal proceedings to an advocate, he has to act according to the principles of uberrima fides, i.e., the utmost good faith, integrity, fairness and loyalty.
25. Reference may also be had to the judgment of the Supreme Court in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Satyen Bhowmick & Ors., AIR 1981 SCC 917. That was a case in which the accused was charged under the Official Secrets Act. The Magistrate directed the lawyer to produce his notebook. The Magistrate permitted the defence lawyer to take copies of the statement of the witness in order to be in a position to cross-examine the witness. Subsequently, the Magistrate directed the lawyer to produce his notebook to examine that only a summary of the evidence has been taken by the lawyer not in extenso in violation of Section 14. The lawyer 12 claimed privilege under Section 126 of the Act. The Supreme Court held as follows:-
26. xxx xxx
4. That there was absolutely no impropriety on the part of the Magistrate in not taking action against the defence lawyer for his refusal to' show his register because the lawyer had rightly claimed privilege under Section 126 of the Evidence Act as the register contained instructions given by the client which being privileged could not be disclosed to the Court. On a parity of reasoning we find no impropriety on the conduct of the lawyer in refusing to show the statement of witnesses recorded by the Court in extenso in order to prepare himself for an effective cross- examination of the witnesses. Hence the strictures passed by the High Court on the Magistrate as also on the lawyer of the defence were, in our opinion, totally unwarranted. xxx
26. Similarly, in a recent judgment in the case of Reserve Bank of India & Ors. vs. Jayantilal N. Mistry & Ors., (2016) 3 SCC 525 the Supreme Court while dealing with the defence of RBI that it was in the fiduciary relationship with the Bank noted as follows:-
55. The Advanced Law Lexicon, 3rd Edition, 2005, defines fiduciary relationship as "a relationship in which one person is under a duty to act for the benefit of the other on the matters within the scope of the fiduciary relationship. Fiduciary relationship usually arise in one of the four situations (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act or give advice to another on matters falling within the scope of the relationship, or (4) when there is specific relationship that has traditionally be recognized as involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer.
xxx
57. The term fiduciary relationship has been well discussed by this Court in the case of Central Board of Secondary Education and Anr. v. Aditya Bandopadhyay and Ors. (supra). In the said decision, their Lordships referred various authorities to ascertain the 13 meaning of the term fiduciary relationship and observed thus:
20.1) Black's Law Dictionary (7th Edition, Page 640) defines 'fiduciary relationship' thus:
A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships-such as trustee- beneficiary, guardian-ward, agent-principal, and attorney- client-require the highest duty of care. Fiduciary relationships usually arise in one of four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer."
10. Reference can also be made to the judgement of the Hon'ble High Court of Kerala in Secretary to Advocate General vs SIC, Kerala WP (C) 7240/2013 decided on 30.09.2022 where it was held that there exists a fiduciary relationship between the Advocate General and the State Government. The relevant extracts of the judgement are as under:
"18. From the above discussions, it is clear that the lawyer-client relationship is a fiduciary relationship. There may be delicate and confidential communications between a lawyer and his client. All communications between the lawyer and his client are to be protected because these communications are confidential. The same is protected as per Section 8(1)(e) of the Act 2005. The Advocate General is the advisor of the Government. As I mentioned earlier, there may be delicate and sensitive issues, in which the Government wants the opinion of the Advocate General. Those are confidential communications between the Government and the Advocate General. The legal opinions given by the Advocate General to the Government should always be confidential. That is protected under Section 8(1)(e) of the Act 2005. If it is protected under Section 8(1)(e) of the Act 2005, the overriding effect of Section 22 of the Act to the Evidence Act will also not be available. In such circumstances, Section 126 of the Indian Evidence Act is also applicable as far as a legal opinion given by the 14 Advocate General to the Government is concerned. Therefore, I am not in a position to agree with the orders passed by the State Information Commission in these two writ petitions to disclose the legal opinions given by the Advocate General to the Government. Therefore, these writ petitions are to be allowed quashing the orders passed by the State Information Commission."
11. From the foregoing it is clear that exemption u/s 8 (1) (e) will be applicable where an information seeker is requesting for opinions given by an Advocate to his/ her client and not vice versa. The factual matrix of the present instance is completely different since the Appellant herein is seeking the replies of SWAC, Gandhinagar regarding inter departmental correspondence pertaining to a representation dated 19.01.2022 made by the Appellant himself. The Hon'ble High Court in Delhi in Union of India vs. R.S. Khan WP (C) No. 9355 of 2009 and CM No. 7144 of 2009 dated 07.10.2010 held that:
"10...........in the context of a government servant performing official functions and making notes on a file about the performance or conduct of another officer, such noting cannot be said to be given to the government pursuant to a 'fiduciary relationship' with the government within the meaning of Section 8(1)(e) of RTI Act. Section 8(1)(e) is, at best, a ground to deny information to a third party on the ground that the information sought concerns a government servant, which information is available with the government pursuant to a fiduciary relationship, that such person, has with the government, as an employee.
11. To illustrate, it will be no ground for the Union of India to deny to an employee, against whom the disciplinary proceedings are held, to withhold the information available in the Government files about such employee on the ground that such information has been given to it by some other government official who made the noting in a fiduciary relationship. This can be a ground only to deny disclosure to a third party who may be seeking information about the Petitioner in relation to the disciplinary proceedings held against her. The Union of India, can possibly argue that in view of the fiduciary relationship between the Petitioner and the Union of India it is not obligatory for the Union of India to disclose the information about her to a third party. This again is not a blanket immunity against disclosure. In terms of Section 8(1)(e) RTI Act, the Union of India will have to demonstrate that there is no larger public interest which warrants disclosure of such information.15
(See also Union of India and Ors vs Col V K Shad and Others 2012 SCC Online Del 5710)
12. On perusal of the available records, it is also clear that in this particular instance, the O/o JAG (Air) is only providing the final outcome of the action taken on the representation to the Appellant on the basis of the inputs received from other departments. Thus no justifiable cause for denying of information u/s 8 (1) (e) of the RTI Act, 2005 can be found in the present case. Be that as it may, since the information on points a and b has already been provided to the Appellant by the Respondent Air HQ, New Delhi vide letter dated 07.03.2023 in compliance to the earlier direction of the Commission in CIC/IAIRF/A/2022/124723 and CIC/IAIRF/C/2022/140774 decided on 28.02.2023, no cause of action subsists in the instant Second Appeal.
13. Regarding the Complaint filed u/s 18 of the RTI Act, 2005, it is noted that in such cases, the Commission is only required to ascertain if the information has been denied with malafide intent or due to an unreasonable cause which the Commission is unable to conclude in the present instance. Hence, no further intervention of the Commission is required in the instant Complaint. With the above observations, the Second Appeal/ Complaint stand disposed off accordingly.
Y. K. Sinha (वाई. के . िस हा) Chief Information Commissioner (मु य सूचना आयु ) Authenticated true copy (अिभ मािणत स यािपत ित) S. K. Chitkara (एस. के . िचटकारा) Dy. Registrar (उप-पंजीयक) 011-26186535 16