Central Information Commission
Manish Kumar Kataria vs Bharat Heavy Electricals Limited ... on 8 August, 2022
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/BHELD/A/2021/145859
Manish Kumar Kataria ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Bharat Heavy Electricals Limited,
RTI Cell, BHEL House, Siri Fort,
New Delhi - 110049. .... ितवादीगण /Respondent
Date of Hearing : 03/08/2022
Date of Decision : 08/08/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 11/06/2021
CPIO replied on : 22/06/2021
First appeal filed on : 06/07/2021
First Appellate Authority order : 09/08/2021
2nd Appeal/Complaint dated : NIL
Information sought:
The Appellant filed an RTI application dated 11.06.2021 seeking the following information:
(i) "Whether the National Insurance Company Limited has settled Bharat Heavy Electricals limited (BHEL) claim for 600 MW TG Stator which met with an accident during transit from BHEL, Haridwar unit to Chennai against Insurance Policy No, 350600/44/08/5050000011. Yes or No?
(ii) If the claim has been repudiated by National Insurance Company Limited, whether BHEL has challenged the same. Yes or No?1
(iii) If the above repudiation has been challenged by BHEL, please provide copy of all letters/ representations sent by BHEL to National Insurance Company Limited against the repudiation of claim by National Insurance Company Limited, till date."
The CPIO furnished a point wise reply to the appellant on 22.06.2021 stating as follows:-
Point No.1) "The National Insurance Company Ltd has not settled the claim of BHEL for damage of 600 MW TG stator which met an accident during transit from BHEL, Haridwar to Chennai against insurance Policy No.350600/44/08/ 5050000011.
Point No. 2 & 3:- The information sought by the applicant is in a nature of information excluded under Section 8(1)(d) of RTI Act, i.e. Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party. As such, the information cannot be provided."
Being dissatisfied, the appellant filed a First Appeal dated 06.07.2021. FAA's order dated 09.08.2021 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Represented by Advocate Ankur Goyal present through video- conference.
Respondent: Shilpi Sikka, Dy. Manager (Law) & CPIO present through intra-video conference.
The Advocate of the Appellant while reiterating the contents of the RTI Application expressed his dissatisfaction with the denial of information by the CPIO in response to points no (ii) & (iii) under the garb of Section 8(1)(d) of RTI Act. He further harped on the fact that he was representing the Transporter's Company whose claim has been repudiated and they were made liable to disburse the claim of Rs. 23 crores. He furthermore stated that since the information is needed to corroborate evidence in a claim case of such substantial 2 amount and also considering the fact that the Appellant has a stake being the effected party ; the information should be provided to him.
The Commission at the outset apprised the parties that similar issue of another Appellant has already heard and decided by this bench on 07.07.2022 vide Appeal no. CIC/BHELD/A/2021/132982 the following observation -
"xxxxxxx Decision:
The Commission at the outset upon a perusal of records and after scrutinizing the contents of the RTI Application arrives at the conclusion that the queries raised by the Appellant are in the nature of seeking clarifications/explanations from the CPIO based on his interrogatories which concededly do not conform to Section 2(f) of RTI Act. In this regard, 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:
"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) Further, even if a liberal interpretation is accorded to the nature of information sought for, the Commission cannot lose sight of the fact that the arbitration proceedings were pending at the time of filing of instant RTI Application. Here it is pertinent to note that issue for determination of arbitration in the instant 3 appeal is squarely covered by the decision of a coordinate bench in the matter of Baleshwar Kumar vs. Ordnance Factory Board, Nalanda (File No. CIC/CC/A/2016/000509/SD) dated 03.01.2017 wherein the following was held:
"Arbitration is a form of Alternate Dispute Resolution and one of the tenets of such dispute resolution is privacy and confidentiality. This is also apparent from Section 75 of the Arbitration & Conciliation Act, 1991 which states that:
'Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.' Now even so by virtue of Section 22 of the RTI Act, which also is the latter law in force, the above said position of law stands overridden, yet exemptions under Section 8 of the RTI Act allows for denial of information on certain grounds. In the facts of the present case, Commission deems it appropriate to invoke Section 8(1)(j) of the RTI Act in as much as the disclosure of information may cause unwarranted invasion of the privacy of the parties involved in the arbitration and further as a matter involving commercial implications, disclosure at the pendency stage of arbitration may also be detrimental to the interest of the government exchequer which in effect is public money."
Adverting to the rationale of the above quoted decision, the Commission finds that while the CPIO has adequately discharged the onus of justifying the denial of the information sought for in the instant RTI Application under Section 8(1)(j) of the RTI Act, there is no infirmity in the said denial in as much as the arbitration proceedings are pending and disclosure of the information sought for by the Appellant does not warrant any larger public interest. Having observed as above, the Commission finds no scope of intervention in the matter as this stage."
The CPIO submitted that information as per its availability has already been provided to the Appellant in terms of RTI Act. She further submitted that copies of the internal correspondences and documents as sought by the Appellant involves commercial confidence and trade secrets which cannot be divulged to the Appellant in view of Section 8(1)(d) of RTI Act. At the instance of the Commission, the CPIO further clarified that the arbitration proceedings in the insurance claim although have been concluded and arbitral award has been awarded in favour of BHEL, however the Appellant has challenged the award by filing an appeal before the Hon'ble High Court which is pending adjudication as on 4 date. She further apprised the Commission that even otherwise, the Insurance Survey Report in addition was also sub-judice before the Hon'ble Delhi High Court, therefore the information sought for cannot be divulged to the Appellant.
The advocate of the Appellant interjected to restrict his claim to point no. (iii) that copies of all the correspondences exchanged between the BHEL and Insurance company may be provided to him in order to substantiate his claim before the court of law.
Decision:
In furtherance of hearing proceedings and considering the square applicability of ratio of above said observation, the Commission finds no scope of further intervention in the matter.
In view of the above, the contention raised by the Appellant's advocate that he was one of the effected parties being the transporter therein is rendered inconsequential.
Thus, no relief can be ordered in the matter.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 5