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Meera Murali vs Bharat Sanchar Nigam Limited on 20 September, 2018

                                    के   ीय सूचना आयोग
                            Central Information Commission
                                    बाबा गंगनाथ माग
, मुिनरका
                             Baba Gangnath Marg, Munirka
                                नई  द
ली, New Delhi - 110067

ि तीय अपील सं या / Second Appeal No. CIC/BSNLD/A/2017/176200

Ms. Meera Murali,                                        ....अपीलकता
/Appellant
                                    VERSUS
                                      बनाम
Central Public Information Officer
Bharat Sanchar Nigam Ltd.,
O/o. The General Manager,
Tamil Nadu Circle, 16, Greams Road,
Chennai-600006                                          ... ितवादी/Respondent

Date of Hearing:                       18.09.2018

Date of Decision:                      18.09.2018

RTI Application filed on:              17.07.2017
CPIO replied on:                       04.08.2017
First Appeal filed on:                 31.08.2017
FAA's order:                           03.10.2017
2nd Appeal received on:                15.11.2017

                                 ORDER

Facts:

1. The appellant filed RTI application dated 17.07.2017 seeking information regarding: "imposition of liquidated damages under the BSNL Phase-V Project for Tamil Nadu under APO No. 190-21/2008-MMD/IT/SZ dated 21.07.2008 and BSNL TN PO No. TN/MS-D/506/Ph V.1/9M/ITI-H/Vol- II/PO/2008-09/34, 35 and 36 dated 01.01.2009", etc.

2. The appellant filed second appeal on 15.11.2017 with the Commission on the ground that information should be provided to her.

Hearing:

3. The appellant was personally present in the hearing and was represented through counsel. The respondent was represented through counsel Sh. K R Ramesh Kumar who participated in the hearing through VC.

4. The respondent had sent their written submission dated 17.09.2018, which is taken on record.

5. The appellant referred to the RTI application dated 17.07.2017 and stated that the information has been wrongly denied to her.

6. The appellant stated that the BSNL invited bids for planning, supply, installation, testing and commissioning of 9 million lines of GSM equipments in order to expand its GSM network. In accordance with Govt. of India guidelines, BSNL is required to procure 30% of the total quantity through ITI Limited as reserved quota.

7. The appellant stated that the ITI entered into a MoU with Huawei which provided forwarding of the Pos issued by BSNL on back-to-back basis to Huawei. A tripartite agreement was entered between BSNL, ITI and Huawei. Under the agreement, a bank guarantee of Rs. 192.90 crores was provided directly by Huawei to BSNL. The appellant stated that for the purposes of payments, a joint escrow account was opened in the names of BSNL, ITI and Huawei w.r.t the project.

8. The appellant stated that Huawei is the party actually executing the work assigned by BSNL under the tender. BSNL has of its own accord, entered into direct communications with Huawei, instead of through ITI, with respect to various aspects of the work awarded under the tender. The appellant stated that the BSNL cannot be allowed to withhold crucial information directly concerning payments to be received by Huawei for the work executed by it for BSNL.

9. The appellant stated that the reply of the respondent was a non-speaking order merely denying the requested information by only citing Section 8(1)(d) of the RTI Act and that the matter is third party information.

10. The appellant stated that the respondent has also not invoked Section 11 of the RTI Act and had not sought consent from the third party.

11. The appellant stated that even if she is not considered as an authorized representative of Huawei, this information can otherwise be provided to the general public. She stated that there is no commercial confidence in disclosing this information.

12. The respondent stated that they have informed the appellant that the information sought by her is exempted from disclosure under Section 8(1)(d) of the RTI Act.

Discussion/ observation:

13. From the perusal of the records and after hearing both the parties, the Commission is of the view that the appellant should file her written submissions in the matter on the issue that whether she is seeking information on behalf of the company i.e. Huawei or in her individual capacity. The respondent should file their written submission as to whether the information is disclosable to the general public under the provisions of the RTI Act. They should also clarify how the disclosure of information will harm the commercial confidence or competitive position of the third party. If the third party agrees for disclosure of information after issuance of notice under Section 11 of the RTI Act, whether the respondent still feels that provisions of Section 8(1)(d) will be attracted.

Decision:

14. Both the parties are directed to file their written submissions in the matter as per para 13 above and on any other aspect, within 15 days from the date of receipt of this order. Both the parties are directed to send copy of their written submission along with their counters to the Commission and opposite party.

15. The Deputy Registrar is directed to fix hearing in the matter after 15 days.

Copy of the decision be given free of cost to the parties.

Radha Krishna Mathur ( राधा कृ ण माथुर ) Chief Information Commissioner ( मु य सूचना आयु ) Authenticated true copy (अिभ मािणत स ािपत ित) S.C. Sharma Dy. Registrar 011-26186535 4