Central Information Commission
Elias John vs Balmer Lawrie & Co. Ltd. on 18 October, 2019
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/BLCLT/A/2018/120657-BJ
Mr. Elias John
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
Balmer Lawrie & Co. Ltd.
Secretary's Department, 21, Netaji Subhash Road
Kokata - 700001
... ितवादीगण /Respondent
Date of Hearing : 17.10.2019
Date of Decision : 18.10.2019
Date of RTI application 08.12.2017
CPIO's response 09.01.2018
Date of the First Appeal 16.01.2018
First Appellate Authority's response 05.03.2018
Date of diarised receipt of Appeal by the Commission 02.04.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information on 12 points regarding the firms that had responded to M/s Balmer Lawrie & Co. Ltd. tender no BL/IT/HO/MS/PT/2017 18/008 dated 12.10.2017, tender no 0100PM0937 (Mumbai), advertisement dated 26.10.2017 and tender no.
MMLH/DOCK/PT/27 (Vishakhapatnam) for Managed Infrastructure and Services for web - based Distributor Management system; name, address, phone, email, mobile, site url of each participant of the aforementioned tender and other issues thereto.
The CPIO, vide its letter dated 09.01.2018 stated that the information sought related to various subjects/ tenders. Hence, the CPIO requested the Appellant to prioritize his requirement and restrict the Appellant's query to a particular subject/tender so that they could provide the information to the Appellant. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 05.03.2018 stated that the information sought by the Appellant were distinct and separate and were not inter related or inter connected to be treated as Page 1 of 9 "a request". The Appellant was hence advised to make a separate requisition for each type/genre of information to the CPIO as per the RTI Act, 2005.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Absent Respondent: Shri Kaustav Sen, CPIO & Sr. Manager (Legal) in person;
The Appellant remained absent during the hearing. Mr. Shine, Network Engineer NIC studio at Trivandrum confirmed the absence of the Appellant. The Respondent stated that vague and roving queries were sought by the Appellant since information pertaining to biding for 04 different tenders for different locations across the country was sought disclosing which would result in disproportionate diversion of their resources since consent of several Third Parties u/11 of the RTI Act, 2005 would be required. Hence, the Appellant was requested to seek specific information. The Respondent further submitted that since the information sought pertained to Limited Tenders and that the CVC guidelines restrained them to disclose any information in the Public Domain. During the hearing, the Commission instructed the Respondent to produce a copy of the relevant CVC guidelines which prohibited the disclosure of all closed tender related information including the generic details of name of bidders. No satisfactory response was provided by the Respondent who retracted from his earlier submission and agreed to disclose the tender wise names of all the bidders.
The Commission at the outset observed that the information relating to the generic details relating to the bidders applying for a tender should be suo motu disclosed on the website of the Public Authority for the ease and convenience of the public at large. In this context, the Commission observed that a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of public who having to seek information should be an exception. An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms. Section 4(2) of the RTI Act mandates every public authority to provide as much information suo-motu to the public at regular intervals through various means of communications, including the Internet, so that the public need not resort to the use of RTI Act.
The Hon'ble Supreme Court of India in the matter of CBSE and Anr. Vs. Aditya Bandopadhyay and Ors 2011 (8) SCC 497 held as under:
"37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under Clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption."
The Commission also observes the Hon'ble Delhi High Court ruling in WP (C) 12714/2009 Delhi Development Authority v. Central Information Commission and Another (delivered on:
21.05.2010), wherein it was held as under:Page 2 of 9
"16.It also provides that the information should be easily accessible and to the extent possible should be in electronic format with the Central Public Information Officer or the State Public Information Officer, as the case may be. The word disseminate has also been defined in the explanation to mean - making the information known or communicating the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet, etc. It is, therefore, clear from a plain reading of Section 4 of the RTI Act that the information, which a public authority is obliged to publish under the said section should be made available to the public and specifically through the internet. There is no denying that the petitioner is duty bound by virtue of the provisions of Section 4 of the RTI Act to publish the information indicated in Section 4(1)(b) and 4(1)(c) on its website so that the public have minimum resort to the use of the RTI Act to obtain the information."
Furthermore, High Court of Delhi in the decision of General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 had held as under:
"8. The RTI Act, as per its preamble was enacted to enable the citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. An informed citizenry and transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance. The spirit of the legislation is further evident from various provisions thereof which require public authorities to:
A. Publish inter alia:
i) the procedure followed in the decision making process;
ii) the norms for the discharge of its functions;
iii) rules, regulations, instructions manuals and records used by its employees in discharging of its functions;
iv) the manner and execution of subsidy programmes including the amounts allocated and the details of beneficiaries of such programmes;
v) the particulars of recipients of concessions, permits or authorizations granted. [see Section 4(1) (b), (iii), (iv), (v); (xii) & (xiii)].
B. Suo moto provide to the public at regular intervals as much information as possible [see Section 4(2)]."
Moreover, in a series of judgements several high courts have allowed disclosure of tender related information wherein the Government/ Public Authority is also one of the participant. The relevant extracts of the decisions are mentioned as under:
The Hon'ble High Court of Madras in V.V. Mineral v. Director of Geology and Mining, Writ Petition (MD) No.5427/2007 dated 25/06/2007 held as under:
"11.Therefore, the principal contention that a right accrues to the petitioner to object may be correct in the context if a document is exclusively submitted by any person to the Government authorities such as property statements, income tax returns etc., but in a Page 3 of 9 case of lease deeds and transport permits which emanate from the statutory authorities and where the petitioner cannot be said to be in exclusive possession, he cannot have a right to object to its being divulged as a third party. The lease deeds pertaining to minerals as well as transport permits are not documents prepared or to be kept by a prospecting mine operator but prospecting a mine or mineral is a privilege conferred by the State to the individuals, who accepts the norms prescribed under Mines and Minerals Act 1957 and the rules framed thereunder.
12. In the present case, when the third respondent as an Information Officer, ordering notice to the petitioner and taking their objection and refusing to furnish the documents sought for by a citizen is clearly beyond the scope of the RTI Act. If the information is available with the State and such information is in exclusive custody of the State, the question of seeking any opinion from the third party on such issues may not arise especially, when they are public documents. By disclosure of such information, no privilege or business interests of the petitioner are affected. On the other hand, such a disclosure may help any party to act upon those documents and take appropriate steps."
The aforesaid observation of the Hon'ble High Court of Madras was upheld in the decision of the Hon'ble High Court of Nagpur in Sunflag Iron & Steel Company Ltd. V. State Information Commission Writ Petition No. 863/ 2012 dated 14.11.2014 wherein, the following was held:
"10. After hearing the learned advocates for the respective parties and considering the judgments referred above, in my view, it cannot be said that in each and every case the notice under Section 19(4) of the Act of 2005 is required to be issued to third party and hearing is to be afforded to the third party before any directions for supplying the information are given. The Division Bench of Delhi High Court has considered the scope of Section 11(1) of the Act of 2005 and has laid down that the notice is required to be given to third party in case information prima facie is considered as confidential and if it affects the rights of privacy of the third party.
12. If the impugned order is examined in the light of the above referred judgments, it has to be held that the directions given by the Commission to provide the information as sought vide Item no.5 of the application given by the respondent no.1 cannot be said to be an information which can be considered as confidential and in the exclusive possession of the petitioner, it being a Memorandum of Understanding to which the Government of Maharashtra is a party. However, the information sought by the respondent no.4 vide Item No.4 of his application, cannot be provided to the respondent no.4 without hearing the petitioner and considering its objections. The information sought by the respondent no.4 vide Item no.4 of his application, does not specify the documents in respect of which the information is sought and the directions to provide the information on such vague request may prejudice the petitioner.
13. The reliance placed on behalf of the petitioner on the judgment given in the case of R.K. Jain V/s. Union of India & Anr. (cited supra) is misdirected inasmuch as in this case, the information sought related to the annual confidential reports of the third party which objected to the providing of the information. In the judgment given in the case of Surupsingh Hrya Naik V/s. State of Maharashtra & Ors. (cited supra) again the issue was about giving of information relating to the hospital records. In the judgment given in the case of SKIL Infrastructure Private Limited & Anr. V/s. State Information Page 4 of 9 Commissioner & Ors. (cited supra) the issue about supplying the information which was not exclusively in the custody of the third party and which related to the transactions of the State Government, did not fall for consideration.
The judgments relied on behalf of the petitioner do not assist the petitioner. As far as the facts of the present case are concerned, information sought by the respondent no.4 vide item no.5 of his application is concerning the Memorandum of Understanding to which the Government of Maharashtra is party and it cannot be said that the information is exclusively related to the petitioner. The directions issued by the Commission to provide the information to the respondent no.4 sought vide Item no.5 of his application cannot be faulted with."
The Commission finds that the decision of the Hon'ble High Court of Delhi in Jamia Millia Islamia v. Ikramuddin WP (C) No. 5677/2011 dated 22.11.2011, quoted by the appellant, is also pertinent to this matter wherein it was observed that:
"The act of entering into an agreement with any other person/entity by a public authority would be a public activity, and as it would involve giving or taking of consideration, which would entail involvement of public funds, the agreement would also involve public interest. Every citizen is entitled to know on what terms the Agreement/settlement has been reached by the petitioner public authority with any other entity or individual."
The Commission also draws reference to the judgment of the Division bench of Jharkhand High Court, in State of Jharkhand v. Navin Kumar Sinhga and Anr., AIR 2008 Jharkhand 19 dated 08/08/2007, held as under:
"26........The question therefore that falls for consideration is as to whether disclosure of various documents submitted by the bidders is a trade secret or commercial confidence or intellectual property. Prima facie, we are of the view that once a decision is taken in the matter of grant of tender, there is no justification to keep it secret. People have a right to know the basis on which the decision has been taken. If tenders are invited by the public authority and on the basis of tender documents, the eligibility of a tenderor or a bidder is decided, then those tender documents cannot be secret, that too, after the tender is decided and work order is issued on the ground that it will amount to disclosure of trade secret or commercial confidence. If the authorities of Government refuse to disclose the document, the very purpose of the Act will be frustrated. Moreover, disclosure of information, sought for by the petitioner, cannot and shall not be a trade secret or commercial confidence; rather disclosure of such information shall be in public interest, inasmuch as it will show the transparency in the activities of the Government.
27. ......... Since the tender process is completed and contract has been awarded, it will not influence the contract. Besides the above, a citizen has a right to know the genuineness of a document submitted by the tenderer in the matter of grant of tender for consultancy work or for any other work. As noticed above, the tender process is completed and the contract has been awarded, therefore, it will not influence the contract. In any view of the matter, the document in question cannot be treated as trade secret or commercial confidence. In our considered opinion a contract entered into by the public authority with a private person cannot be treated as confidential after completion of contract."Page 5 of 9
Furthermore, para 1.1.1 of O.M. No. No.1/6/2011-IR issued by the DoPT on issue of guidelines regarding implementation of suo motu disclosure under section 4 of RTI Act, 2005 states as under "1.1.1 Information relating to procurement made by Public Authorities including publication of notice/tender enquiries, corrigenda thereon, and details of bid awards detailing the name of the supplier of goods/services being procured or the works contracts entered or any such combination of these and the rate and total amount at which such procurement or works contract is to be done should be disclosed. All information disclosable as per Ministry of Finance, Department of Expenditure's O.M. No 10/1/2011-PPC dated 30th November, 2011 on Mandatory Publication of Tender Enquiries on the Central Public Procurement Portal and O.M. No. 10/3/2012- PPC dated 30th March, 2012 on Implementation of comprehensive end-to-end e-procurement should be disclosed under Section 4. At present the limit is fixed at Rs. 10.00 lakhs. In case of procurements made through DGS&D Rate Contracts or through Kendriya Bhandar/ NCCF, only award details need to be published. However information about procurement which fall within the purview of Section 8 of the RTI Act would be exempt."
The RTI Act, 2005 was enacted to ensure greater and effective access of information and progressive and meaningful participation of all concerned. . The preamble also inter alia states "... democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed." The Commission finds that every action of the government must be actuated in public interest and for larger public good. When a public authority is largely funded by the government, a citizen has every right to know about the investments carried out by the public entity in the larger interest of the public.
The Hon'ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 while explaining the term "Public Interest" held:
"22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]."
The Hon'ble Supreme Court in the matter of Ashok Kumar Pandey vs The State Of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the following texts for defining the meaning of "public interest', which is stated as under:
"Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus:
"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in Page 6 of 9 which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."
In Mardia Chemical Limited v. Union of India (2004) 4 SCC 311, the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, recognised the significance of Public Interest and had held as under :
In Mardia Chemical Limited v. Union of India MANU/SC/0323/2004 : (2004) 4 SCC 311, wherein the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, had held as under :
".............it may be observed that though the transaction may have a character of a private contract yet the question of great importance behind such transactions as a whole having far reaching effect on the economy of the country cannot be ignored, purely restricting it to individual transactions more particularly when financing is through banks and financial institutions utilizing the money of the people in general namely, the depositors in the banks and public money at the disposal of the financial institutions. Therefore, wherever public interest to such a large extent is involved and it may become necessary to achieve an object which serves the public purposes, individual rights may have to give way. Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country..........."
The Commission further observed that the CPIO/ FAA did not provide correct reply to the Appellant since as per the observations made by the Commission in the preceding paragraphs, tender related information should be suo motu disclosed on the Public Authority to the extent permissible. Moreover, the Respondent present during the hearing also attempted to deflect the issues raised in the RTI application/ Second Appeal by citing certain CVC instructions only to retract from his submission after being questioned by the Commission. This indicates blatant callousness/ casualness/ disregard to the provisions of the RTI Act, 2005 by providing an incorrect and misleading response to the Appellant. The provisions of the RTI Act, 2005 and various judgements on the subject matter clearly establishes that it is the duty of the CPIO to provide clear, cogent and precise response to the information seekers. Section 7 (8) (i) of the RTI Act, 2005 also states that where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection. The Hon'ble Delhi High Court in the matter of J P Aggarwal v. Union of India (WP (C) no. 7232/2009 clearly stated that the PIO acts as the Pivot for enforcing the implementation of the Act. The relevant extracts of the decision are as under:
" 7"it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO Page 7 of 9 within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken". The RTI Act makes the PIO the pivot for enforcing the implementation of the Act."
8.............The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non-disclosure."
Furthermore, the Hon'ble Delhi High Court in the case of Shri Vivek Mittal v. B.P. Srivastava, W.P.(C) 19122/2006 dated 24.08.2009 had upheld the view of the CIC and observed that ".....The Act as framed, castes obligation upon the CPIOs and fixes responsibility in case there is failure or delay in supply of information. It is the duty of the CPIOs to ensure that the provisions of the Act are fully complied with and in case of default, necessary consequences follow".
Furthermore, the Hon'ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:
"9................................ That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only."
The Commission also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information. In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject "Courteous behavior with the persons seeking information under the RTI Act, 2005" wherein it was stated as under:
"The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary."
The Appellant was not present to contest the submissions of the Respondent or to substantiate his claims further.
DECISION:
Keeping in view the facts of the case and the submissions made by the Respondent, the Commission while cautioning the CPIO, instructs the Respondent to disclose the details of the names of the bidders for the tenders mentioned in the RTI application to the Appellant as also Page 8 of 9 suo motu disclose such information on its website within a period of 15 days from the date of receipt of this order, under intimation to the Commission respecting the spirit of the RTI Act, 2005.
The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
The Appeal stands disposed accordingly.
(Bimal Julka) (िबमल जु का)
(Information Commissioner) (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
(K.L. Das) (के .एल.दास)
(Dy. Registrar) (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 18.10.2019
Copy to:
1. The Secretary, Ministry of Petroleum and Natural Gas, 2nd Floor, Shastri Bhavan, New Delhi-110001
2. Chairman and Managing Director, Balmer Lawrie & Co. Ltd., Secretary's Department, 21, Netaji Subhash Road, Kokata - 700001 Page 9 of 9