Central Information Commission
Sanjay Kumar Singh vs Damodar Valley Corporation on 13 July, 2023
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/DVCOR/A/2022/640941
SANJAY KUMAR SINGH ....अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Damodar Valley Corporation,
RTI Cell, DVC Tower: VIP Tower
Kolkata-700054, W.B. .... ितवादीगण /Respondent
Date of Hearing : 06/07/2023
Date of Decision : 06/07/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 04/02/2022
CPIO replied on : 02/03/2022
First appeal filed on : 03/03/2022
First Appellate Authority order : 28/04/2022
2nd Appeal/Complaint dated : 25/07/2022
Information sought:
The Appellant filed an RTI application dated 04.02.2022 seeking the following information:
1. "An Executive Director Level Committee was constituted regarding treatment of the period of disciplinary proceeding held during period from 10th April 2015 to 1 21st March 2018 in respect of Shri Sanjay Kumar Singh, Manager (Finance), DVC, Hazariabag. You are requested to kindly arrange to provide copy of entire noting right from the proposal/initiation level of constituting that Executive Director Level Committee to approval for constituting that Executive Director Level Committee as available in the concerned file.
2. Kindly arrange to provide copy of the concerned Office Order of formal document having whatsoever title of that constituted Executive Director Level Committee.
3. You are requested to kindly arrange to provide copy of the concerned Report/findings submitted by that Executive Director Level Committee regarding treatment of the period of disciplinary proceeding held in respect of Shri Sanjay Kumar Singh, Manager (Finance), DVD, Hazaribag.
4. Kindly arrange to provide a copy of the synopsis/document submitted by DVC as well as by the hired Advocate concern before the solicitor General for obtaining his legal opinion in the matter of treatment of the period of disciplinary proceedings held in respect of Shri Sanjay Kumar Singh, Manager (Finance), DVD, Hazaribag.
5. Kindly arrange to provide a copy of the Legal Opinion obtained from the solicitor General in respect of treatment of the period of disciplinary proceedings as well as admissibility of payment pertaining to the period of disciplinary proceeding disciplinary proceeding held during period from 10th April 2015 to 21th March 2018 in respect of Shri Sanjay Kumar Singh, Manager (Finance), DVC, Hazariabag.
6. Kindly arrange to provide a copy of the concerned Bill/Payment voucher to me by which payment to the hired Advocate Concern was made for placing the matter before the Solicitor General as well as kindly arrange to provide a copy of the concerned Bill/Payment voucher to me by which payment has been made to the Solicitor General for obtaining his Legal Opinion in the matter of Shri Sanjay kumar Singh, Manager (Finance), Damodar Valley Corporation."
The CPIO furnished a reply to the appellant on 02.03.2022 stating as under:
Pt. No. 1&4: Information sought for is exempted under section 8 (1) (e) of the RTI Act, 2005.2
Pt. No. 2, 3 &5: The information sought for is ready and available containing 46(Forty six) pages of A4 size paper. If you desire to have the document, you have to deposit exactly Rs. 92.00/-
Pt. No. 6: Information sought for is exempted under section 8 (1) (e) & 8 (1) (j) of the RTI Act, 2005.
Being dissatisfied, the appellant filed a First Appeal dated 03.03.2022. FAA's order dated 28.04.2022, 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: Present through video-conference.
Respondent: Sangita Sill, DGM & CPIO along with Abhay Kumar, Dy. Manager (HR) present through video-conference.
The Appellant vehemently expressed his dissatisfaction that the information has been wrongly denied by the CPIO under the alleged garb of Section 8(1)(e) of RTI Act ignoring the fact that it relates to his own disciplinary case for which he has every right to know to corroborate evidence in his defence. He further invited attention of the bench towards the fact that in his similar matter, the Commission in case file no. CIC/DVCOR/A/2018/160478 on 10.07.2020 had directed the CPIO to provide a copy of legal advice/opinion of Solicitor General and which was duly supplied by the CPIO in compliance to this effect. He, therefore, prayed the Commission that CPIO may be directed to provide a copy of relevant information as sought for at point no. 1, 4 and 6.
In response to Appellant's contentions, the CPIO at the outset reiterated the contents of her written submissions dated 05.07.2023 wherein she inter alia ,stated as under -
Against sl. No. 1 of his RTI application he sought copy of file noting towards formation of ED level committee. Exemption had been taken to disclose the file noting towards formation of the committee. However, the Office Order and the Report submitted by the Committee had been provided to the RTI applicant.3
The file noting usually contains observations, proposal, opinions, views expressed by the officials, showing good faith and condour and reposing trust and confidence in the employer, who is expected to hold such views/opinions in confidence as fiduciary. And any such information won't be disclosed to any third party unless and until competent authority is satisfied that the larger public Interest warrants the disclosure of such information. Based on above explained reasons, the information sought for by the applicant under sl. no. 1 of the RTI application dated 04.02.2022 may be exempted under Section 8 (1)(e) of the RTI Act, 2005.
Against sl. No. 4 of his RTI application he sought copy of synopsis/ documents submitted by DVC/ hired advocate concern before the solicitor General for obtaining legal opinion. Exemption had been taken to disclose the above matter. However, the copy of legal opinion obtained from the Solicitor General had been provided to the RTI applicant. The information sought under sl. No. 4 was related to exchange of information between DVC and the advocates including Solicitor General of India for obtaining legal opinion in the matter pertaining to treatment of absence period of Shri Sanjay Kumar Singh and entitlement of pay and other benefits, if any. Since, there is a specific relationship that has traditionally been recognised as involving fiduciary duties, as with a lawyer and a client. And any such information won't be disclosed to any third party unless and until competent authority Is satisfied that the larger public interest warrants the disclosure of such information. The information sought by the applicant under sl. no. 4 of the RTI application dated 04.02.2022 may be exempted under Section 8 (1)(e) of the RTI Act, 2005. However, at this juncture all the documents related with this matter may not be available to HR Department.
The information sought under sl. No. 6 of the RTI application was copy of bill/payment voucher by which payment was made to advocates Including Solicitor General of India. All the said information contains some personal Information viz, address, PAN No., Account No., etc. which can't be disclosed. Also, the bills submitted by the advocates are held in confidence as fiduciary and any such Information won't be disclosed to any third party unless and until competent authority is satisfied that the larger public interest warrants the disclosure of such information. Based on above explained reasons, the information sought for by the applicant under sl. no. 6 of the RTI application dated 04.02.2022 may be exempted under Section 8 (1)(e) and 8 (1)(j) of the RTI Act, 2005. i. In this connection, CPIO, DVC does not have any authority to generate information for extending information to the applicant/appellant. The information has been extended/uploaded as 4 expeditiously as possible based on the information furnished by the deemed CPIO which was full and final. All out effort has been made from CPIO's end in letter and true spirit to dispose of the application..."
Abhay Kumar, Dy. Manager (HR) further attempted to clarify that claim of the Appellant that information sought by him in the earlier case bearing file no. CIC/DVCOR/A/2018/160478 and the instant one was different , is factually I not acceptable as the issue involved in the earlier case relates to the Appellant's own disciplinary proceedings wherein he was supposed to put forth his defence; therefore, copy of legal opinion in the said case had been shared with the Appellant; while, the gamut of information sought in the instant matter relates to non-disbursal of his salary during the suspension period wherein no question of defence as such arises and thus, the information sought vis-à-vis legal opinion and noting of Chairman, DVC in this regard along with copy of payment voucher, etc. cannot be divulged in view of Section 8(1)(e) of RTI Act, as these are held by DVC in fiduciary capacity. The Appellant, interjected to contest that the version of CPIO is not acceptable at all as the subject matter of both the RTI Applications were the same.
To the above mentioned aspect, upon repeated query from the Commission the CPIO has failed to clarify the factual position.
Decision:
At the outset, the Commission records severe admonition of the conduct of the CPIO in consuming substantial time of the Commission by not bringing the correct facts & figures before the bench regarding the instant matter during hearing which was also experienced by the bench in the recent past by the CPIO of DVC in multiple cases. In this regard, the CPIO is strictly cautioned to exercise due diligence and also keep herself well acquainted with the contents of the RTI applications while representing before the Commission failing which it would be viewed seriously .
Now coming to the information sought by the Appellant in the case as regards to points no. 1, 4 & 6 is concerned, the Commission upon a perusal of facts on records and after hearing submissions of the parties is of the considered view that denial of information by the CPIO under Section 8(1)(e) of RTI Act is appropriate as the contents of information sought as discussed in the preceding paragraphs is in the fiduciary capacity.5
(1) copy of entire noting right from the proposal/initiation level of constituting that Executive Director Level Committee to approval for constituting that Executive Director Level Committee as available in the concerned file;
xxx (4) synopsis/document submitted by DVC as well as by the hired Advocate concern before the solicitor General for obtaining his legal opinion in the matter of treatment of the period of disciplinary proceedings held in respect of Shri Sanjay Kumar Singh, Manager (Finance), DVD, Hazaribag.; and xxx (6) a copy of the concerned Bill/Payment voucher to me by which payment to the hired Advocate Concern was made for placing the matter before the Solicitor General as well as kindly arrange to provide a copy of the concerned Bill/Payment voucher to me by which payment has been made to the Solicitor General for obtaining his Legal Opinion in the matter of Shri Sanjay kumar Singh, Manager (Finance), Damodar Valley Corporation.
In this regard, the reasoning accorded by the CPIO through written submissions suggests applicability of Section 8(1)(e) of RTI Act. Adverting to the applicability of Section 8(1)(e) of RTI Act for information regarding legal opinion received by the public authority, the Commission relies upon the following observation of a constitution bench of Hon'ble Supreme Court in the matter of B.P Singhal vs. Union of India (2010) 6 SCC 331:
"41....Though the Attorney General holds a public office, there is an element of lawyer-client relationship between the Union Government and the Attorney General...." (Emphasis Supplied) Further, a division bench of the Hon'ble Supreme Court in the matter of CBSE vs. Aditya Bandhyopadhyay, (Civil Appeal No. 6454 of 2011) vide judgment dated 09.08.2011 has extensively dwelled over the meaning and import of the term ''fiduciary" and held as under:
"21. The term `fiduciary' refers to a person having a duty to act for the benefit of another, showing good faith and condour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term `fiduciary relationship' is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction/s. The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith 6 and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and expected not to disclose the thing or information to any third party...."
"22..... But the words `information available to a person in his fiduciary relationship' are used in section 8(1)(e) of RTI Act in its normal and well recognized sense, that is to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary - a trustee with reference to the beneficiary of the trust, a guardian with reference to a minor/physically/infirm/mentally challenged, a parent with reference to a child, a lawyer or a chartered accountant with reference to a client, a doctor or nurse with reference to a patient, an agent with reference to a principal, a partner with reference to another partner, a director of a company with reference to a share-holder, an executor with reference to a legatee, a receiver with reference to the parties to a lis, an employer with reference to the confidential information relating to the employee, and an employee with reference to business dealings/transaction of the employer...." (Emphasis Supplied) Upon a conjoint reading of the above case laws, it will not be out of place to infer that the protection afforded under Section 8(1)(e) of RTI Act is available to such legal opinion as referred to by the CPIO by virtue of the fiduciary element subsisting therein.
In view of the foregoing deductions and the fact that Appellant has not urged any larger public interest in the disclosure of the information sought in the RTI Application, Commission is not inclined to order for any relief in the matter.
However, in pursuance to clause 4 of hearing notice, the CPIO is directed to share a copy of her latest written submission free of cost with the Appellant immediately upon 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 ) 7 Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 8