Central Information Commission
Mr. Sunil Kumar Bansal vs Southern Railway, Chennai on 15 May, 2009
Central Information Commission
CIC/OK/A/08/00893-AD
Dated May 15, 2009
Name of the Applicant : Mr. Sunil Kumar Bansal
Name of the Public Authority : Southern Railway, Chennai
Background
1. The Applicant filed his RTI application dated 21.04.08 with the CPIO, Southern Railways, Chennai requesting for the following documents:
i) Report sent by the Southern Railway Vigilance to the Board for obtaining the first stage advice of the CVC - Ref - Charge memo vide No. P (G)CON/1/17/2205 dated 15.4.05.
ii) Copy in full - the 1st stage advice of the CVC in above case.
2. The CPIO replied on 02.05.2008 denying the information ".... since the D&AR process is yet to come to finality, u/s 8(1)(h) of RTI Act 2005...." The information was also denied on the ground that the same could not be parted with due to the embargo created under provisions of u/s 8(1)(e) of the RTI Act 2005 since the report sought by the Applicant contained information on the other officers and officials other than the Applicant.
3. Being denied information, the Applicant filed a First Appeal on 09.05.2008 with the Appellate Authority reiterating the contents of his RTI request. Among the various arguments and submissions made by the Appellant the following are the primary ones: i) The Appellant contended in his Appeal the inapplicability of both the exemptions as sought by the CPIO under provisions of Section 8(1) (e) and Section 8(1) (h) of the RTI Act 2005 in the instant case. ii) Reliance was also placed by the Appellant on the judgment passed by the Hon'ble High Court of Delhi in the matter of Bhagat Singh Vs. Central Information Commission, followed by the decision passed by the Hon'ble Chief Information Commissioner in the matter of Dhirendra Krishna vs. CBI in Case No. CIC/WB/2008/00964, as well as couple of other decisions passed by the Commission. iii) In the Appeal the Appellant also referred to the letter of the Adviser Vigilance, Railway Board, Ministry of Railways addressed to the General Manager, Southern Railway stating inter alia that although clauses 8(1) (g), (h) and
(j) of the RTI Act 2005, exempts the Vigilance Department from divulging any information while investigations are in progress, the same protection ceases to exist after the completion of the enquiry. The Appellant states that since in his case the investigation (enquiry) was completed long back and even the chargesheet was issued to him, hence the exemption as sought by the CPIO under Section 8(1)(h) of the RTI Act 2005 is not applicable in view of the clear position of law which is reaffirmed in the letter of the Adviser Vigilance, Railway Board, Ministry of Railways. iv) The Appellant also challenged the act of non application of the provisions of the Section 11 of the RTI Act 2005 by the CPIO while dealing with the Appellant's request for information even if it is considered that the information sought contained information about some other officers apart from the Appellant. The Appellate Authority replied vide the letter dated 03.06.2008 reiterating the CPIO's arguments while denying the information and upholding the decision of the CPIO.
4. Being thus aggrieved by constant denial of information, the Appellant filed an Appeal before the Central Information Commission on 09.06.2008. The Appellant reiterated the entire facts of the case in his contentions and addressed arguments on the following key issues:
i) the First Appeal was disposed off by the CPIO instead of the Appellate Authority which is the proper course of law, as has also been held in a decision of the Commission being CIC/AT/A/2007/00080 dated 04.07.2007;
ii) despite specific request of the Appellant, the First Appeal was disposed off by the CPIO [not even the Appellate Authority] without granting any hearing to the Appellant, which is against the spirit of law as also held by the CIC in decisions CIC/OK/A/2007/01453 dated 09.04.2008 and CIC/AT/A/2006/00072 dated 31.05.2006;
iii) the CPIO has failed to address with the specific issues raised in the First Appeal while disposing off the Appeal vide the non speaking order dated 03.06.2008;
iv) inapplicability of the provisions of Section 8 (1) (e) of the RTI Act 2005 in the instant case specially in view of the Central Vigilance Commission's letter no. 99/VGL/66 dated 28.09.2000 directing all Ministries to supply its first stage advice and second stage advice to the concerned Charged Official in keeping with the principles of natural justice and fair play. Furthermore reliance was also placed on the CIC decision no. 1323/IC (A)/2007 dated 10.10.2007 deciding similar issues in favor of disclosure of information;
v) inapplicability of the provisions of Section 8 (1) (h) of the RTI Act 2005 while placing reliance on CIC decisions on this issue as also the decision of the Hon'ble High Court of Delhi in the matter of Bhagat Singh vs. CIC deciding the scope of applicability of the Section 8 (1)(h) of the RTI Act 2005;
vi) deliberate non application of the provisions of Section 11 of the RTI Act 2005 by the Respondent Public Authority;
vii) insufficiency of the partial information supplied etc.
5. The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the hearing for May 15, 2009 and a communication dated 29.04.2009 was accordingly sent to the parties intimating the date of hearing of the appeal.
6. Mrs. K. Bhuvaneshwari, PIO & Dy. CVO/A, Mr. A.P. Mishra, Appellate Authority & AGM and Mr. B Nageshwara Rao, APIO & JD/PG represented the Public Authority.
7. The Applicant was not present during the hearing.
Decision
8. The Respondent Public Authority submitted their reply to the Appeal vide a communication dated 12.05.2009. However the rebuttal was neither too specific nor directly answering the contentions raised by the Appellant. While dealing with the exemption sought by The Respondent on the ground of Section 8 (1) (h) of the RTI Act 2005, it is noted that the Respondent has submitted that relevant portion of the CVC'S 1st stage advice has been provided as per CVC circular No. 99/VGL/66 dated 28.09.2000. However, perusal of the facts of the case clearly indicates that the investigation in the case is already over and the Appellant has been chargesheeted already, hence there can be no apprehension so as to seek exemption from disclosure of information under provisions of Section 8 (1) (h) of the RTI Act 2005.
Moreover even natural justice demands that the information relevant to the accused should be disclosed in order that the accused be granted opportunity to prove his innocence.
9. The Commission, while considering the second argument of the Respondent with respect to Section 8 (1) (e) of the RTI Act 2005 about denial of disclosure of information since the same is held in fiduciary capacity; the meaning of the word "fiduciary relationship" was analysed from various perspectives and the following connotations could be summarised:
• Various decisions of the Commission indicate that fiduciary relationship is a relationship of trust which may also be between an individual and a juristic person such as Government, University or a Bank.
The word "fiduciary" is derived from the Latin fiducia meaning "trust", a person (including a juristic person such as Government, University or Bank) who has the power and obligation to act for another under circumstances which require total trust, good faith and honesty.
• The fiduciary relationship can also be one of moral or personal responsibility due to the superior knowledge and training of the fiduciary as compared to the one whose affairs the fiduciary is handling. In short, it is a relationship wherein one person places complete confidence in another in regard to a particular transaction or one's general affairs of business.
• In Fiduciary Relationship, a person with the legal duty to act primarily for another's benefit enjoys a position of trust, good faith and responsibility. Thus the word "Fiduciary" is often used as an alternative term for "trustee".
In the instant case, no such relationship emerges or exists giving rise to "Fiduciary relationship". Hence, the Commission has arrived at the conclusion that CVC was not holding any document in confidence, but inquired into the whole incident and prepared an Inquiry Report and handed it over to Southern Railways. Therefore, the instant case does not fall within any of the categories of the definitions as stated hereinabove. Hence the plea of the Respondent Public Authority seeking exemption under the garb of "fiduciary relation" is incongruous. Accordingly, the Commission decides that since the documents have not been held in a fiduciary capacity since no "fiduciary relationship" existed, hence the denial of the Public Authority to furnish the information sought by the Appellant under the garb of the Section 8 (1) (e) is completely ruled out.
10. In the light of the settled law as mentioned hereinabove and in view of the peculiar facts of this case, the Commission hereby directs the Respondent to disclose the information asked for by the Appellant by 10th June 2009.
11. Appeal is disposed off accordingly in the above terms.
(Annapurna Dixit) Information Commissioner Authenticated true copy:
(G.Subramanian) Asst. Registrar Cc:
1. Mr.Sunil Kumar Bansal Deputy Chief Engineer/Works O/o General Manager Southern Railway Headquarters Office 2nd Floor, Park Town Chennai 600 003
2. The CPIO Southern Railway Headquarters Office Vigilance Branch Chennai 600 003
3. The Appellate Authority Southern Railway Headquarters Office Vigilance Branch Chennai 600 003
4. Officer in charge, NIC
5. Press E Group, CIC