Central Information Commission
Sandeep Kumar vs Bharat Heavy Electricals Limited ... on 11 July, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/BHELD/A/2021/665958
Sandeep Kumar ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Bharat Heavy Electricals Limited (BHEL)
BHEL House, August Kranti Road
Siri Fort Institutional Area, Siri Fort
New Delhi-110049 .... ितवादीगण /Respondent
Date of Hearing : 10/07/2023
Date of Decision : 10/07/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 08/07/2022
CPIO replied on : 08/08/2022
First appeal filed on : 09/08/2022
First Appellate Authority order : 27/09/2022
2nd Appeal/Complaint dated : 09/12/2022
Information sought:
The Appellant filed an RTI application dated 08/07/2022 seeking the following information:
1. "Can a Government or PSU employee hold any post or office in Government Sector or PSU or Private sector, simultaneously with current employment?1
2. Can a Government employee OR PSU employee become Director or CMD or Independent Directors simultaneously with current employment?
3. What are the process or approval required for a Government or PSU employee to hold another position /employment outside the parent organization?
4. Is there any conflict of interest on account of holding such position simultaneously?
5. No employee of central government or PSU shall except with the previous sanction of the Government engage directly or indirectly in any trade or business or negotiate for or undertake any employment."
The CPIO furnished a reply to the appellant on 08.08.2022 stating as under:-
"1 & 3. The applicant is seeking clarification which cannot be provided as the same is not defined as information under Section 2 (f) of the RTI Act, 2005.
2.The appointment of a PSU employee to the post of director, CMD or independent director is subject to the provisions of the Companies Act as well as Board/GOI approval (to be decided on case to case basis). BHEL, being a Public Sector Undertaking, the appointment of Directors and tenure is decided by the Government of India. In BHEL, the Functional Directors are nominated as directors in JV companies pursuant to Joint Venture Agreement with the JV partner. They are neither subject to any remuneration, nor for any other benefit in kind from these companies. Remuneration, if any, paid to them is remitted back to BHEL. The relevant statutory provisions are: a) The Companies Act provides that "No person shall hold office as a director, including any alternate Directorship, in more than twenty companies at the same time, provided that the maximum number of public companies in which a person can be appointed as a director shall not exceed ten; and b) as per SEBI (LODR) Regulations, a person shall not be a director in more than seven listed entities with effect from April 1, 2020, provided that a person shall not serve as an independent director in more than seven listed entities. Notwithstanding the above, any person who is serving as a whole time director / managing director in any listed entity shall serve as an independent director in not more than three listed entities.2
4. As regards appointment of functional directors as BHEL nominee in JV Companies, they hold office of directorship with the approval of the competent authority to safeguard the BHEL interest and as such there is no conflict of interest on account of holding such positions. With regard to appointment of BHEL employees to such positions, the comments of the concerned department may be obtained.
5. As per the provisions of the Companies act, 2013 and as explained above, a person can hold multiple directorship simultaneously subject to the ceiling as specified in the statute. As sought, the details of the approval are mentioned below: -
a) Pursuant to Govt. order, MS. Renuka Gera was inducted as additional director by the Board of BHEL and subsequently shareholders' approval was also obtained. She is holding the position of Director (IS&P) in BHEL. Her nomination in RPCL is as per JV agreement with KPCL.
b) Shri Shashank Priya is part-time non-official director on BHEL Board. His appointment in BHEL & other Companies is as per the Govt. order.
c) Pursuant to Govt. order, Shri Nalin Singhal was appointed as CMD by the Board of BHEL and subsequently shareholders' approval was also obtained. He is also appointed as part-time Chairman in HEC, pursuant to Govt. order.
d) Pursuant to Govt. order, Shri Subodh Gupta, was inducted as additional director by the Board of BHEL and subsequently shareholders' approval was also obtained. He is holding the position of Director (Finance) in BHEL.
His nomination in JVs is as per JV agreement/ Board Approval."
Being dissatisfied, the appellant filed a First Appeal dated 09.08.2022. FAA's order, dated 27.09.2022 held as under -
"For Query 1. - The CPIO is directed to reconsider the request made by appellant under Sr No. 1 of the appeal and provide the information and supporting documents as available, if any.
For Query 2 & 3- CPIO is directed to reconsider the replies given to applicant for the information sought under queries 2 & 3 and also directed to provide the requisite information, if any, within two weeks from receipt of this order.
Further, the undersigned has also examined the whole matter at length requiring considerable time to address the various connected issues. The 3 undersigned has thus taken more than thirty days to examine the subject comprehensively in the context in which the information has been sought."
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal on the ground of unsatisfactory response from the CPIO.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Not present.
Respondent: Shilpi Sikka, Dy. Manager (Law) & CPIO present through intra-video conference.
The CPIO while placing reliance on her written submission dated 06.07.2023 submitted that a point wise reply has been provided to the Appellant and also in compliance with FAA's order, an additional revised reply along with a copy of relevant AGM proceedings had been provided to the Appellant on 24.11.2022. She further tendered her apology for delay in compliance of FAA's order explaining that it was unintentional and that compilation of information took considerable time.
Decision:
At the outset, the Commission observes from a perusal of records and after scrutinizing the contents of the instant RTI Application that the information sought by the Appellant is interrogative in nature which concededly does not conform to Section 2(f) of RTI Act and also the fact remains that it also contains the elements of personal information of third party officers which is hit by Section 8(1)(j) of RTI Act. Notwithstanding this, the CPIO provided a very comprehensive response addressing all the issues flagged in the RTI application , in the spirit of the RTI Act. For better understanding of the mandate of RTI Act, the Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act. His attention is also drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors. [CIVIL APPEAL NO.6454 of 2011] wherein it was held as under:4
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide `advice' or `opinion' to an applicant, nor required to obtain and furnish any `opinion' or `advice' to an applicant. The reference to `opinion' or `advice' in the definition of `information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act." (Emphasis Supplied) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer & Ors [SLP (CIVIL) NO.34868 OF 2009], Hon'ble Supreme Court held as under:
"6. Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed...."
"7....Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him...." (Emphasis Supplied) And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:5
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.
Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information." (Emphasis Supplied) Further, as regards the applicability of exemption clause of Section 8(1)(j) of RTI Act is concerned, attention of the Appellant is also invited towards a judgement of Hon'ble Supreme Court of India in the matter of Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010 wherein while explaining the import of "personal information" envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the same Court in the matter(s) of Canara Bank Vs. C.S. Shyam in Civil Appeal No.22 of 2009; Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794.The following was thus held:
"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy 6 and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive..." (Emphasis Supplied) In view of the foregoing and also considering the absence of the Appellant during hearing to buttress his case, the Commission finds no scope of further action in the matter.
However, the CPIO is advised to exercise due diligence in future and informed the applicants in a categorical manner that the information sought does not fall under Section 2(f) of RTI Act.
Lastly, in pursuance to clause 4 of hearing notice, the CPIO is directed to provide a copy of her latest written submission free of cost to the Appellant within 2 days from the date of receipt of this order under due intimation to the Commission.
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 / 7