Central Information Commission
Mr. Kishanlal Mittal vs Central Vigilance Commission on 11 August, 2010
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2009/000939 dated 24-9-2009
Right to Information Act 2005 - Section 19
Appellant: Shri Kishanlal Mittal,
Respondent: Central Vigilance Commission
Decision announced in hearing 11.08.2010
FACTS
By an application of 9-6-09 received in CVC on 15-6-09 Shri Kishanlal Mittal of Borivali East, Mumbai applied to the CPIO, CVC seeking the following information:
(a) Kindly provide information on cases of corruption registered/recommended by CVC/initiated by AICTE against officials of AICTE from 2000 till date. Kindly provide the copy of file with file notings thereof. If additional information is available with another public authority, you may use section 6(3) of the RTI Act to request the concerned organization to provide the information.
(b) Kindly provide copies of files with file notings regarding disciplinary/vigilance/misconduct proceedings initiated by CVC against the officials of personal departments regarding the inordinate delay in finalizing punishments in as laid down in CVC circular 000/VGL/18 dt. 3rd March, 2003. If additional information is available with another public authority, you may use section 6(3) of the RTI Act to request the concerned organization to provide the information.
(c) Kindly provide information on the vigilance case of Ordinance Factory Board Chairman Sudipta Ghosh. Please provide all documents relating to the case including all recommendations by the concerned departments and CVC, files with file notings etc. If additional information is available with another public authority, you may use section 6(3) of the RTI Act to request the concerned organization to provide the information.
(d) Kindly provide copies of file with file notings in the case of disciplinary proceedings available with CVC against Dr. AK Goyal, Scientist F, Bureau of Indian Standards, New Delhi. If additional information is available with another public authority, you may use section 6(3) of the RTI Act to request the concerned organization to provide the information.1
To this Shri Kishan Lal Mittal received a response from CPIO, Shri Rajiv Verma, Under Secretary, CVC dated 14-7-09 informing him as follows:
Para (a) The information sought by you is not maintained by this Public Authority in the form in which it has been sought by you, hence the same cannot be provided to you by this Public Authority. Moreover, you may "note' that under Section 6(1) of the RTI Act, it is the responsibility of the Applicant to approach the Public Authority 'concerned' to seek the required information. You may therefore, approach the appropriate Public Authority in case you require information from another Public Authority. Moreover, the information available with the Commission pertaining to vigilance cases includes their personal details of the officials and other information/complaints which are provided to the Commission in confidentiality by Complainants and providing the same would not serve any public interest. Hence, in addition to the above, the information sought by you cannot be provided under the provision contained in Section 8(1)(e) and Section 8(1)(g) of the RTI Act.
Para (b) The Commission maintains its records according to the name, designation of the officials along with the name of the organization, against whom vigilance cases are received by it and not in the format as requested by you. Hence, the same cannot be provided by this Public Authority.
One case against Shri Sudipta Ghosh, being dealt with in Commission's file No. 001/Def/136 has been taken to a logical conclusion and hence, the CPIO concerned has issued notice u/s 11 of the RTI Act to the authorities concerned, that is Ministry of Defence and CBI before taking a decision to provide you the information. After obtaining their response an appropriate reply would be sent to you separately. There is one more case against Shri Sudipta Ghosh being dealt with in file No. 009/Def/030, which has not reached its logical conclusion, that is, the authorities concerned have not yet taken a final decision in the matter. Hence, the documents pertaining to file No. 009/Def/030 are denied u/s 8(1)(h) of the RTI Act, as the disclosures of the same at this stage may impede the process of investigation.
Para (d) The case against Dr. A.K. Goel, Scientist F, Bureau of Indian Standards has not reached its logical conclusion, that is, the authorities concerned have not yet taken a final decision in the matter. Hence, the documents pertaining to the case against Dr. 2 A.K. Goel are denied u/s 8(1)(h) of the RTI Act, as the disclosures of the same at this stage may impede the process of investigation.
Aggrieved with this response Shri Kishanlal Mittal moved an appeal before Shri Alok Bhatnagar, AS, CVC which, because of its implication, is reproduced in full below:
"(a). My request for information clearly states." Kindly provide information on cases of corruption registered/recommended by CVC1/initiated by AICTE against officials of AICTE from 2000 till date". There is no other public authority that would have this information. CVC is liable to provide this information being the public authority as per 6(1) of the RTI Act. Also, section 7(9) clearly states that information has to be provided in the form in which it is desired. Moreover, the exemption sought u/s 8(1)(e) is not valid, since there is no fiduciary relationship; CVC being a statutory body. Hence the denial of information is arbitrary and malafide.
(b). In reply to para (b), the CPIO has denied that the information is not maintained in the form it is sought. Again to quote section 7(9) the information has to be provided in the manner in which it is sought. Hence the denial of information is arbitrary and malafide.
(c). In reply to para (c) of my petition, the CPIO denies information claiming exemption u/s 8(1)(h), in the file # 009/Def/030, claiming that the case has not reached logical conclusion and the provision of information may impede the process of investigation, without explaining how this would impede the process. Sections 8(1)(h) can be used only if the information could be used impede the process of investigation. By no stretch of imagination, providing the information would impede the process of investigation. This view has been upheld by CIC in the case CIC/WB/A/2007/01644. hence, the denial of information is arbitrary and malafide.
(d). In reply to para (d) of my petition, the CPIO denies information claiming exemption u/s 8(1)(h), in the case against Dr. A.K. Goyal, claiming that the case has not reached logical conclusion and the provision of information may impede the process of investigation, without explaining how this would impede the process. Sections 8(1)(h) can be used only if the information could be used impede the process of investigation. By no stretch of imagination, providing the information would impede the process of investigation. This view has been upheld by CIC in the case 1 Underlined by us for reference as this point was emphasized by appellant in the hearing 3 CIC/WB/A/2007/01644. Hence, the denial of information is arbitrary and malafide."
Shri Alok Bhatnagar in his detailed order of 26-8-09 has, however, dismissed the appeal concluding as follows:
"The issues raised by the Appellant in his Appeal dated 21.07.2009 have thus been addressed appropriately."
In this context AS has examined each of the answers provided by CPIO and except in one case upheld the decision of the CPIO to refuse information, except in the case of Commission's file No. 001/DEF/136, which concerns question (c ) of the original application of Shri Kishanlal Mittal regarding which appellate authority Shri Alok Bhatnagar has directed as follows:
"I, therefore, direct Shri P.S. Gupta, Advisor & CPIO concerned, to provide the copies of the documents, free of cost to the Appellant, within 10 days of the receipt of these orders."
However, it appears that the latter orders were not adhered to because in his prayer before the Commission, against point No. (c ) in second appeal Shri Kishanlal Mittal has pleaded as follows:
"The CPIO may be directed to provide the information as well as penalty be imposed on the erring CPIO u/s 20(2) of the RTI Act."
In his second appeal before us Shri Kishanlal Mittal has pleaded against each of the questions that the "CPIO may be directed to provide information." The appeal was heard through video-conferencing on 11-8-2010. Only Shri Girish Mittal representative of appellant Shri Kishanlal Mittal is present at NIC Studio, Mumbai. The authority letter in favour of Shri Girish Mittal has been received on e-mail, which has been placed on file. Although informed of the date of hearing through our notice dated 26-7-2010 respondents from Central Vigilance Commission are not to be present. Efforts at contacting respondents on the given phone numbers proved fruitless, hence the Commission has decided to proceed in this matter ex parte.
Shri Girish Mittal has submitted that the Appellate Authority instead of adjudicating upon the legality or otherwise of the decision by the CPIO has 4 instead sought through circumlocution to defend the response given by CPIO Shri Rajiv Verma. He has submitted that with regard to question (a) CPIO has sought to deny information as exempt u/s 8 (1) (e). Shri Girish Mittal cited the decision of the High Court of Delhi on the definition of fiduciary relationship and submitted that the plea taken by CPIO, CVC is unjustified.
With regard to question (b) Shri Girish Mittal submitted that CVC has guidelines with regard to initiation and completion of proceedings against officials. These guidelines are not being adhered to in finalising punishment. Similarly, in answers to points (c) and (d) Shri Girish Mittal has submitted that these decisions are not in keeping with the Delhi High Court in W.P.(C) No.3114/2007-Bhagat Singh Vs. Chief Information Commissioner & Ors and High Court Ruling in case Nos. WPC 8396/2009, 16907/2006, 4788/2008, 9914/2009, 6085/2008, 7304/2007, 7930/2009 and 3607/2007 of 30th November, 2009.
DECISION NOTICE We have now a clear definition of fiduciary relationship, which is exempt from disclosure u/s 8 (1) (e). In his judgment in WP(C) 228/2009, CPO Supreme Court of India vs. SC Agrawal & Anr Hon'ble Ravindra Bhat J has discussed the concept of fiduciary relationship in some detail. The Delhi HC ruling in the above case is as follows:
54......It is argued that a fiduciary relationship is created, where one person depends, on, or entrusts his affairs to 55. It is necessary to first discern what a fiduciary relationship is, since the term has not been defined in the Act. In Bristol & West Building Society v. Mathew [1998] Ch 1, the term "fiduciary", was described as under:
"A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence."
Dale & Carrington Invt. (P) Ltd. v. P.K. Prathapan, (2005) 1 SCC 212 and Needle Industries (India) Ltd v. Needle Industries (Newey) India Holding Ltd: 1981 (3) SCC 333 establish that Directors of a company owe fiduciary duties to its shareholders. In P.V. Sankara 5 Kurup v. Leelavathy Nambiar, (1994) 6 SCC 68, the Supreme Court held that an agent and power of attorney holder can be said to owe a fiduciary relationship to the principal.
56. In a recent decision (Mr. Krishna Gopal Kakani v. Bank of Baroda 2008 (13) SCALE 160) the Supreme Court had to decide whether a transaction resulted in a fiduciary relationship. Money was sought to be recovered by the plaintiff, from a bank, who had moved the court for auction of goods imported, and retained the proceeds; the trail court overruled the objection to maintainability, stating that the bank held the surplus (of the proceeds) in a fiduciary capacity. The High Court upset the trial court's findings, ruling that the bank did not act in a fiduciary capacity. The Supreme Court affirmed the High Court's findings. The court noticed Section 88 of the Trusts Act, which reads as follows:
"Section 88. Advantage gained by fiduciary. - Where a trustee, executor, partner, agent, director of a company, legal advisor, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained."
Affirming the High Court's findings that the bank did not owe a fiduciary responsibility to the appellant, it was held by the Supreme Court, that:
"9. An analysis of this Section would show that the Bank, to whom the money had been entrusted, was not in the capacity set out in the provision itself. The question of any fiduciary relationship therefore arising between the two must therefore be ruled out. It bears reiteration that there is no evidence to show that any trust had been created with respect to the suit money."
The following kinds of relationships may broadly be categorized as "fiduciary":
• Trustee/beneficiary (Section 88, Indian Trusts Act, 1882) • Legal guardians / wards (Section 20, Guardians and Wards Act, 1890) • Lawyer/client;
• Executors and administrators / legatees and heirs • Board of directors / company • Liquidator/company • Receivers, trustees in bankruptcy and assignees in insolvency / creditors • Doctor/patient • Parent/child:6
57. 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 relationship....Fiduciary relationship usually arise in one of the four situations (1) when one person places trust in the faithful integrity of another, who is 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"
58. From the above discussion, it may be seen that a fiduciary relationship is one whereby a person places complete confidence in another in regard to a particular transaction or his general affairs or business. The relationship need not be "formally" or "legally"
ordained, or established, like in the case of a written trust; but can be one of moral or personal responsibility, due to the better or superior knowledge or training, or superior status of the fiduciary as compared to the one whose affairs he handles".
Clearly the information sought against point (a) of Shri Kishanlal Mittal's application is not fiduciary. The decision of Appellate Authority moreover speaks of allegations whereas what appellant has sought, as has been underlined by us as per footnote 1, is only information on cases of corruption registered with CVC, and not allegations. Hence decision of Appellate Authority with regard to this question is set aside. CPIO, CVC will now provide to appellant Shri Kishan Lal Mittal the information as held by CVC on this matter in whatever form, within 15 days from the date of receipt of this decision notice. It is clarified here that CPIO has sought to misguide appellant by asking him to proceed to some other public authority when, in fact, what he has asked for is only information on cases registered by CVC, which no other public authority is expected to hold.
With regard to question at (b) the plea taken by CPIO that the information cannot be provided because it is not maintained in the form in which it is sought fails in light of what appellant has himself submitted in first appeal that as per 7 Section 7 (9) information is "ordinarily" to be provided "in the form in which it is sought." In this case Appellate Authority Shri Alok Bhatnagar has again referred to information not being maintained according to 'allegation' levelled against officials. What appellant Shri Kishanlal Mittal has sought is the copy of file noting regarding certain action initiated by CVC against officials and not allegations. On this count, however, we have in a separate case found that CVC has indeed issued guidelines on proceeding against officials regarding disciplinary, vigilance and misconduct proceedings initiated by them, which however is not enforceable. This information could have been repeated for the information of appellant, which has not been done. While agreeing then that the information sought by appellant Shri Kishanlal Mittal cannot be supplied, CPIO is advised to bring more clarity into his responses to RTI applications in future.
With regard to the request at (c ) and (d) Appellate Authority Shri Alok Bhatnagar has already ordered disclosure of the case being dealt with in file No. 001/DEF/136. If, on the other hand, any information is sought to be exempted u/s 8 (1) (h) this cannot be done without assigning good reasons. Besides, CPIO Shri Rajiv Verma will also note that Delhi High Court in W.P.(C) No.3114/2007
- Shri Bhagat Singh Vs. Chief Information Commissioner & Ors is of relevance, since it deals with the application of sec. 8(1)(h). In this case the Court took serious notice of the two year delay in releasing of information and the lack of adequate reasoning of the orders of PIO and appellate authority. S Ravinder Bhat J specifically notes in Para 15, "As held in the preceding part of the judgment ,without a disclosure as to how the investigation process would be hampered by sharing the materials collected till the notices were issued to the assessee, the respondents could not have rejected the request for granting information. The CIC, even after overruling the objection, should not have imposed the condition that information could be disclosed only after recovery was made" 2 2 Underlined by us 8 In the present case the plea of appellant Shri Kishanlal Mittal is that AICTE cases have continued to pend without good reason. For this reason he pleads that they should not be allowed exemption u/s 8 (1) (h) in light of the above ruling. Notwithstanding, because the decision in this case under these two heads has been given without explaining any reasons, the decision of Shri Alok Bhatnagar in upholding the decision of CPIO is set aside. CPIO will now forthwith provide a copy of the order, as directed by Appellate Authority Shri Alok Bhatnagar in his order of 26.8.'09, to appellant Shri Kishan Lal Mittal within one week from the date of receipt of this decision notice free of cost. In light of the explicit order of appellate authority, CPIO Shri Rajiv Kumar will show cause in writing as to why he should not be held liable for penalty of Rs 25,000/- u/s 20 (1) for obstruction in furnishing of information. He will do this on or before 26.8.'10, failing which this Commission will proceed in accordance with Sec 20(1). For the remainder of questions (c ) and (d) CPIO will re-examine these cases in light of the ruling of the High Court of Delhi cited above and give a final decision in the matter within 15 working days of the date of receipt of this decision notice. The appeal is allowed.
Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 11-8-2010 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 11-8-2010 9 10