Central Information Commission
Ak Venugopal vs Bharat Heavy Electricals Limited ... on 24 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/BHELD/A/2023/602294 +
CIC/BHELD/A/2023/602307 +
CIC/BHELD/A/2023/602324
A.K Venugopal ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Bharat Heavy Electricals Limited,
RTI Cell, BHEL, ISG Prof CNR RAO
Circle, Opp. Indian Institute of Science,
Malleswaram, Bangalore-560012,
Karnataka. .... ितवादीगण /Respondent
Date of Hearing : 20/07/2023
Date of Decision : 20/07/2023
INFORMATION COMMISSIONER : Saroj Punhani
Note- The above mentioned Appeals have been clubbed together for decision as
these are based on similar issues.
Relevant facts emerging from appeals:
RTI applications filed on : 06/09/2022 & 20/09/2022
CPIO replied on : 26/10/2022
First appeals filed on : 17/11/2022
First Appellate Authority order : 21/12/2022
2nd Appeals/Complaint dated : 12/01/2023
1
CIC/BHELD/A/2023/602294
Information sought:
The Appellant filed an RTI application dated 06.09.2022 seeking the following information:
"Tender/Enquiry Ref: 77/22/6065/LSY dated 24.05.2022 for Ash Handling Plant, Yadadri TPS floated by BHEL ISG Bangalore. Please furnish the Information to me in respect of this tender at my address:
1.The document which confirms that BHEL has verified all the compliances of 60 Notifications/Orders in respect of the bid submitted by M/s BTL EPC LTD.
2. The document regarding translation from Chinese to English from the original document submitted by M/s BTL EPC LTD. duly authenticated by any Embassy/any Government Authority.
3.The document regarding BHEL/Customer approval for BTL Ash Handling Plant manufacturing facilities location, equipment, and manpower therein.
4. The document for Memorandum of Association between 8TL and M/s Fujian Longking Co. Ltd.
5. The document related to approval of the technical offer submitted by BTL EPC LTD. from customer/Customer Consultant.
6. The documents post opening of technical bid till price bid opening and post price bid opening."
The CPIO furnished a pointwise reply to the appellant on 26.10.2022 stating as under:
"Point No. 1, 2 & 3:
The information sought under this query is exempted from the disclosure under Section 8 (1) (d) of the RTI Act, 2005. Hence, we are unable to provide the information sought under this query.
Point No. 4:2
The document sought under this query does not exist. Hence, we are unable to provide the information sought under this query.
Point No. 5:
The information sought under this query is exempted from the disclosure under Section 8 (1) (d) of the RTI Act, 2005. Hence, we are unable to provide the information sought under this query.
Point No. 6:
The document sought under this query is vague. Hence, we are unable to provide the information sought under this query."
Being dissatisfied, the appellant filed a First Appeal dated 17.11.2022. FAA's order, dated 21.12.2022, upheld the reply of CPIO.
CIC/BHELD/A/2023/602307 Information sought:
The Appellant filed an RTI application dated 06.09.2022 seeking the following information:
"Tender/Enquiry Ref: 77/22/6065/LSY dated 24.06.2022 for Ash Handling Plant, Yadadri TPS floated by BHEL ISG Bangalore. Please furnish the Information to me in respect of this tender at my address- the documents w.rt. registration of the consortium /bidders with competent authority regarding requirement of Clause no. 52 of Special Conditions of Contract."
The CPIO furnished a reply to the appellant on 26.10.2022 stating as under:
"The document sought under this query does not exist. Hence, we are unable to provide the information sought under this query."
Being dissatisfied, the appellant filed a First Appeal dated 17.11.2022. FAA's order, dated 21.12.2022, upheld the reply of CPIO.
3CIC/BHELD/A/2023/602324 Information sought:
The Appellant filed an RTI application dated 20.09.2022 seeking the following information:
"Tender enquiry number 77/22/6065/SY dated 24/06/2022 for Ash Handling Plant, Yadadri TPS floated by BHEL-ISG Bangalore. Please provide me the documents at my address:
1. All the documents submitted by BTL EPC Ltd in consortium with M/S Fujian Langking Co. Ltd right from Invitation of bid till opening of technical bid and price bid and post price bid opening till date.
2. Document related to BHEL bid scrutiny report, minutes of the meeting. recommendation and approval etc. against this bidding.
3. Also give me specific date for visit of BHEL office to verify all original documents submitted by aforesaid consortium right from invitation of bid-to- bid submission and opening and post bid opening till date."
The CPIO furnished a reply to the appellant on 26.10.2022 stating as under:
"Point No. 1:
The document sought under this query does not exist. Hence, we are unable to provide the information sought under this query.
Point No. 2:
The information sought under this query is exempted from the disclosure under Section 8 (1) (d) of the RTI Act, 2005. Hence, we are unable to provide the information sought under this query.
Point No. 3:
The document sought under this query does not exist. Hence, we are unable to provide specific date for visit to BHEL office."
Being dissatisfied, the appellant filed a First Appeal dated 17.11.2022. FAA's order, dated 21.12.2022, upheld the reply of CPIO.
4Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal stating the following facts -
"...Telangana State Power Generation Corporation Ltd. (TSGENCO) which is a Government of Telangana undertaking is developing a Super Thermal Power Plant (STPP) 4000 MW (5x800) at Yadadri, Dameracherla, Nalgunda District in Telangana. To develop the aforesaid STPP, TSGENCO has appointed Bharat Heavy Electricals Limited (BHEL) which is a Central Government undertaking as an EPC Contractor. BHEL Is developing this STPP via Its unit BHEL-ISG located at Bengaluru.
The scope of the work in development of the STPP Includes design engineering, procurement, manufacturing, supply, erection & commissioning and testing for the numerous systems involved in STPP which among others include a system Ash Handling Plant (AHP). For AHP portion, BHEL-ISG Bengaluru invited bids by prescribing certain prequalification criteria for bidders via its Tender Enquiry no. 77/22/6065/1SY dated 24.06.2022. Bids were invited in two bid system i.e. Technical Bid & Price Bid. These bids were opened by BHEL-ISG on 27.07.2022 and 26.08.2022 respectively. In this bidding process, among other bidders, M/s BTL EPC Ltd. also participated via consortium route by entering into a Consortium Agreement with a Chinese firm M/s Fujian Longking Co. Ltd. BHEL-ISG Issued 101 dated 29.09.2022 to M/s BTL EPC Ltd. The Appellant has sought certain information/documents under RTI Act and filed an application dated 20.09.2022 (online) to CPIO BHEL and appeal dated 17.11.2022 to First Appellate Authority which were responded by them on 26.10.2022 and 21.12.2022 respectively."
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Represented by Advocate Aditya present through intra-video conference.
Respondent: Manoj Lakhra, Sr. DGM & CPIO present through video-conference.
The written submissions along with vakalatnama filed by the Advocate of Appellant are taken on record.5
The Advocate of Appellant while reiterating the contents of instant Appeal as mentioned above stated the factual background of the case that for ' Ash Handling Plant, Yadadri TPS' tender floated by BHEL-ISG Bangalore ; only two bidders had tendered and that the Appellant was one of the employees of the other bidder's ( organization ) who had lost the bid. The bidder BTL EPC Ltd in consortium with M/S Fujian Langking Co. Ltd had won the bid and that BHEL did not follow the prescribed norms / verification while awarding the contract to the consortium firm. The issue in this regard, has been challenged before the Hon'ble High Court of Karnataka and therefore, to clarify the anomalies and furthermore to corroborate evidence in support of defence on behalf of organization; the Appellant has sought the desired information. However, he is aggrieved with the fact that the information has been wrongly denied by the CPIO under the garb of Section 8(1)(d) of RTI Act without giving substantial reasons for denial .
Written submissions in each instant matters filed by the CPIO prior to hearing are taken on record.
The CPIO while reiterating the contents of his replies apprised the bench that the tender bid in question is sub-judice before the Hon'ble High Court of Karnataka; and that the company which won the contract is a standalone company and not a consortium. Upon Commission's instance, the CPIO further facilitated a detailed discussion on the factual background on the tender bid in issue.
Decision:
The Commission based on a perusal of the facts on record and upon hearing the submissions of the parties finds that denial of the information by the CPIO in response to impugned RTI Applications under Section 8(1)(d) of the RTI Act is appropriate. In this regard, relevant portion of Section 8(1)(d) of RTI Act is reproduced below for ready reference -
(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
A bare perusal of aforesaid exemption clause and also considering the fact that the primary essence of information sought is detailed information pertaining to tender 6 enquiry number 77/22/6065/SY dated 24/06/2022 for Ash Handling Plant, Yadadri TPS floated by BHEL-ISG Bangalore in itself reflects that disclosure of entire contents of tender may apparently harm the business interests of such organization vis-à-vis M/s.BTL EPC Ltd.; it therefore, attracts the applicability of Section 8(1)(d) of RTI Act.
In addition to above, the Commission also cannot lose sight of the fact that entire details of averred tender which is sub judice before the Court of law as well, also entails invasion of privacy of third parties which attracts the exemption clause of Section 8(1)(j) of RTI Act. The same can be garnered from a bare perusal of the text of Section 8(1)(j) of the RTI Act as under:
"8. Exemption from disclosure of information.--
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, xxxx
(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information;.."
In this regard, attention of the Appellant is also drawn towards a judgment of the 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 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, 7 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 and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive..."
Having observed as above, no further relief can be granted in the matter.
Nonetheless, in pursuance to clause 4 of hearing notice the CPIO is directed to share a copy of his respective written submissions free of cost with the Appellant immediately upon receipt of this order under due intimation to the Commission.
The appeals are 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 / 8