Central Information Commission
Prem Narain Nigam vs Bharat Sanchar Nigam Limited on 28 December, 2022
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सुचना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मु नरका, नई द ल - 110067
Munirka, New Delhi-110067
File no.: - CIC/BSNLD/A/2022/601714
In the matter of
Prem Narain Nigam
... Appellant
VS
Central Public Information Officer
BSNL, Personnel Branch, 4th Floor,
BSNL Corporate Office Bharat Sanchar Bhawan,
HC Mathur Lane, Janpath New Delhi-110001
...Respondent
RTI application filed on : 01/08/2021 CPIO replied on : 31/08/2021 First appeal filed on : 01/09/2021 First Appellate Authority order : 30/09/2021 Second Appeal Filed on : 09/01/2022 Date of Hearing : 28/12/2022 Date of Decision : 28/12/2022 The following were present: Appellant: Not present
Respondent: Omkar Nath Tiwari, Joint GM (Personnel) and CPIO, present over VC Information Sought:
The appellant has sought the following information:
- Provide copies of the note sheets and documents related to his case file no. 414-08/2018/pers-Appeal and file no. 414-08/2018/ VM -Appeal. Grounds for filing Second Appeal:
The CPIO did not provide the desired information u/s 8(1)( e) of the RTI Act.1
Submissions made by Appellant and Respondent during Hearing: The appellant in his second appeal submitted that information has been denied by the CPIO and same has been followed by the FAA by misusing RTI Act Sec 8(1) (e) and 8(1) (g) although the file is related to his disciplinary case. He further requested to order to provide the sought for information/inspection as the file is related to his disciplinary case. He also submitted that there is a major flaw in the file, and that is why, they do not want to disclose the information. However, he failed to appear for the hearing before CIC and had refused to receive the hearing notice sent via speed post acknowledgment no. ED247506648IN. The said hearing notice was retuned undelivered with remarks "Item returned refused".
The CPIO vide written submissions dated 26.12.2022 reiterated the reply dated 31.08.2021 and the FAA's order dated 30.09.2021. He also submitted that the same bench on 30.12.2021 had disposed of a similar RTI application of the appellant where he had sought inspection of the concerned filed, vide case no.
CIC/BSNLD/A/2020/673563, the operative part of the order was reiterated by him as follows:
"It is also noted that the appellant is asking for all and sundry information from the same respondents and it appears that he is nursing a personal grievance with the respondent and is simply making a mockery of the RTI Act and harassing the public authority. He is therefore advised to exercise his right to information responsibly and refrain from misusing the RTI Act."
Observations:
Based on a perusal of the record, it was noted that the CPIO vide letter dated 31.08.2021 replied to the appellant and stated that the information sought contains information held under fiduciary relationship, disclosure of which is not going to serve larger public interest and hence disclosure is exempted u/s 8(1)(e) of the RTI Act. It also contains information which may endanger the physical safety of some executives and hence disclosure stands exempted u/s 8(1)(g) of the RTI Act. The FAA vide order dated 30.09.2021 disposed of the first appeal and concurred with the CPIO's reply.2
The copies of the note sheets and documents related to the appellant's case file no. 414-08/2018/pers-Appeal and file no. 414-08/2018/ VM -Appeal was asked, therefore, the CPIO was asked to amplify the applicability of Sec 8(1)(e) of the RTI Act, to which he submitted that the opinion and assessments were submitted by the officer in good faith and they have taken the same in fiduciary capacity.
The CPIO also submitted that at that time the matter was pending, later the Appellate Authority observed some procedural flaw and had set aside the final order of the disciplinary authority. He further submitted that the procedure was again restarted and chargesheet was issued. He summed up stating that the matter is now pending for further action.
In the matter of Cen.Pub.Information ... vs Subhash Chandra Agarwal CIVIL APPEAL NO. 10044 OF 2010 on 13 November, 2019, the Supreme Court held as follows:
"32. Clause (e) to Section 8(1) of the RTI Act states that information made available to a person in his fiduciary relationship shall not be disclosed unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information.
The expression 'fiduciary relationship' was examined and explained in Aditya Bandopadhyay (supra), in the following words:
"39. The term "fiduciary" refers to a person having a duty to act for the benefit of another, showing good faith and candour, 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 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 3 thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party.
40. There are also certain relationships where both the parties have to act in a fiduciary capacity treating the other as the beneficiary. Examples of these are: a partner vis-à-vis another partner and an employer vis-à-vis employee. An employee who comes into possession of business or trade secrets or confidential information relating to the employer in the course of his employment, is expected to act as a fiduciary and cannot disclose it to others. Similarly, if on the request of the employer or official superior or the head of a department, an employee furnishes his personal details and information, to be retained in confidence, the employer, the official superior or departmental head is expected to hold such personal information in confidence as a fiduciary, to be made use of or disclosed only if the employee's conduct or acts are found to be prejudicial to the employer.
41. In a philosophical and very wide sense, examining bodies can be said to act in a fiduciary capacity, with reference to the students who participate in an examination, as a Government does while governing its citizens or as the present generation does with reference to the future generation while preserving the environment. But the words "information available to a person in his fiduciary relationship" are used in Section 8(1)(e) of the RTI Act in its normal and well-recognised 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 shareholder, 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 4 employer. We do not find that kind of fiduciary relationship between the examining body and the examinee, with reference to the evaluated answer books, that come into the custody of the examining body." This Court held that the exemption under section 8(1)(e) of the RTI Act does not apply to beneficiaries regarding whom the fiduciary holds information. In other words, information available with the public authority relating to beneficiaries cannot be withheld from or denied to the beneficiaries themselves. A fiduciary would, be duty-bound to make thorough disclosure of all relevant facts of all transactions between them in a fiduciary relationship to the beneficiary.
33. In Reserve Bank of India (supra) this Court had expounded upon the expression 'fiduciary relationship' used in clause (e) to sub- section (1) of Section 8 of the RTI Act by referring to the definition of 'fiduciary relationship' in the Advanced Law Lexicon, 3rd Edition, 2005, which reads as under:
"57. [...] Fiduciary relationship. -- A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the fiduciary relationship. Fiduciary relationship usually arises in one of the four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognised as involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer." Thereafter, the Court had outlined the contours of the fiduciary relationship by listing out the governing principles which read:
"58. [...] (i) No conflict rule -- A fiduciary must not place himself in a position where his own interest conflicts with that of his customer or the beneficiary. There must be 'real sensible possibility of conflict'.
(ii) No profit rule -- A fiduciary must not profit from his position at the expense of his customer, the beneficiary.5
(iii) Undivided loyalty rule -- A fiduciary owes undivided loyalty to the beneficiary, not to place himself in a position where his duty towards one person conflicts with a duty that he owes to another customer. A consequence of this duty is that a fiduciary must make available to a customer all the information that is relevant to the customer's affairs.
(iv) Duty of confidentiality -- A fiduciary must only use information obtained in confidence and must not use it for his own advantage, or for the benefit of another person."
34. Fiduciary relationships, regardless of whether they are formal, informal, voluntary or involuntary, must satisfy the four conditions for a relationship to classify as a fiduciary relationship. In each of the four principles, the emphasis is on trust, reliance, the fiduciary's superior power or dominant position and corresponding dependence of the beneficiary on the fiduciary which imposes responsibility on the fiduciary to act in good faith and for the benefit of and to protect the beneficiary and not oneself. Section 8(1)(e) is a legal acceptance that there are ethical or moral relationships or duties in relationships that create rights and obligations, beyond contractual, routine or even special relationships with standard and typical rights and obligations. Contractual or non-fiduciary relationships could require that the party should protect and promote the interest of the other and not cause harm or damage, but the fiduciary relationship casts a positive obligation and demands that the fiduciary should protect the beneficiary and not promote personal self-interest. A fiduciary's loyalty, duties and obligations are stricter than the morals of the market place and it is not honesty alone, but the punctilio of an honour which is the most sensitive standard of behaviour which is applied {See - Opinion of Cardozo, J. in Meinhard v. Salmon17}. Thus, the level of judicial scrutiny in cases of fiduciary relationship is intense as the level of commitment and loyalty expected is higher than non-fiduciary relationships. Fiduciary relationship may arise because of the statute which requires a fiduciary to act selflessly with integrity and fidelity and the other party, that is the beneficiary, depends upon the wisdom and confidence reposed in the fiduciary. A contractual, statutory and possibly all relationships cover a broad field, but a fiduciary relationship could exist, confined to a limited area or an act, as relationships can have several facets. Thus, relationships can be partly fiduciary and partly non- fiduciary with the former being confined to a particular act or action which 6 need not manifest itself in entirety in the interaction and relationship between two parties. What would distinguish non-fiduciary relationship from fiduciary relationship or an act is the requirement of trust reposed, higher standard of good faith and honesty required on the part of the fiduciary with reference to a particular transaction(s) due to moral, 17 (1928) 164 N.E. 545, 546 personal or statutory responsibility of the fiduciary as compared to the beneficiary, resulting in dependence of the beneficiary. This may arise due to superior knowledge and training of the fiduciary or the position he occupies. Decision:
In view of the above ratio, and the fact that the matter was already decided by CIC earlier in relation to inspection of the file vide order no CIC/BSNLD/A/2020/673563 Dated 31.12.2021 there is no ground to provide any relief to the appellant.
The appeal is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना)
Information Commissioner (सूचना आयु!त)
Authenticated true copy
(अ भ मा णत स या पत त)
A.K. Assija (ऐ.के. असीजा)
Dy. Registrar (उप-पंजीयक)
011- 26182594 /
दनांक / Date
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