Central Information Commission
Narendra Kumar Shukla vs Bharat Heavy Electricals Limited ... on 12 July, 2022
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/2021/132982
Narendra Kumar Shukla ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Bharat Heavy Electricals Limited,
RTI Cell, Room No. 7, HRDC, Sector-1,
BHEL, Ranipur,Haridwar-249403,
Uttarakhand. .... ितवादीगण /Respondent
Date of Hearing : 07/07/2022
Date of Decision : 07/07/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 25/02/2021
CPIO replied on : 11/03/2021
First appeal filed on : 14/06/2021
First Appellate Authority order : 09/07/2021
2nd Appeal/Complaint dated : 12/08/2021
Information sought:
The Appellant filed an RTI application dated 25.02.2021 seeking the following information:1
"1) Whether the insurer M/s National Insurance Co. Ltd. has settled BHEL claim for 600 MW T G Stator which met with an accident during transit from BHEL, Haridwar unit to Chennai against Insurance Policy No. 350600/44/08/5060000011
2) If the claim has been repudiated by Insurer and is being further perused by BHEL, copy of correspondence made by BHEL, Haridwar with Insurer in this regard post repudiation may kindly be provided.
3) If the claim has been repudiated by Insurer and is being further perused by BHEL, copy of correspondence made by BHEL, Haridwar with BHEL, Corporate office in this regard post repudiation may kindly be provided."
The CPIO furnished a point wise reply to the appellant on 11.03.2021 stating as follows:-
"5 (1). The information sought cannot be provided under Section 8(1)(a) and Section 8(1)(h) of RTI Act as arbitration proceeding is already going on with Transporter of 600 MW TG Stator of North Chennai. Disclosure of information would prejudicially affect the economic interest of BHEL.
5 (2). As per point no. 5 (1).
5 (3). As per point no. 5 (1)."
Being dissatisfied, the appellant filed a First Appeal dated 14.06.2021. FAA's order dated 09.07.2021 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal on the following grounds -
"...10. It is submitted that the information sought by the Appellant is in relation to the rejection and/or settlement and/or disposal of the claim of BHEL with the National Insurance Company Limited for damage of 600 MW TG Stator which met an accident during transit from BHEL Haridwar to Chennai against Insurance Policy No. 350600144108/505000001l, which entails involvement of public funds as such also involving public interest, cannot be held to be prejudicial to the economic interest of BHEL in any manner whatsoever.
11. Similarly, in the present case the only 'third party' involved is the National Insurance Company Limited which has admittedly not settled the claim of BHEL for damage of 600 MW TG Stator which met an accident during transit from BHEL Haridwar to Chennai against Insurance Policy No. 3506001441081505000001 l.2
12. There is no information involved as has been refused by the CPIO, which would in any manner whatsoever be held to be prejudicial affecting the economic interest of BHEL. Any information regarding rejection and/or settlement and/or disposal of Claim of BHEL with National Insurance Company Private Limited, involves public fund as such also involves public interest. Therefore, denial of information by the CPIO citing exemption under Section 8(1)(a) of the RTI act is vague, casual and mechanical without the application of mind.
13. Similarly, there is no information involved which may hinder, hamper and impede the arbitration proceedings as cited by the CPIO. It is pertinent to note that 'arbitration proceedings' are not covered under 'investigation', apprehension or prosecution of offenders', therefore, denial of information citing exemption under Section 8(1)(h) of the RTI Act clearly establishes the fact that CPIO is hell bent in concealing such important information related to the public funds under the guise of exemptions under Section 8 of the RTI Act.
14. No commercial confidence and/ or trade secret and/ or intellectual property is involved in the information which has been refused to be provided by the CPIO. Any challenge to the rejection of insurance claim by BHEL is neither a commercial confidence nor a trade secret nor an intellectual property. Therefore, the CPIO has taken shelter under these loose expressions to withhold information from the Appellant.
15. It is pertinent to note here both National Insurance Company Limited and BHEL are not some private entity, but Central Public Sector Undertaking (Public Authority) which itself are bound to disclose the information under the provisions of RTI Act.."
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Along with Advocate Ankur Goel present through video-conference. Respondent: Anand Prakash,Senior Manager & present through video- conference.
The Advocate of the Appellant reiterated the contents of their written submission dated 04.07.2022, relevant portion of which is reproduced below in verbatim -
"...PRELIMINARY SUBMISSIONS:
7. At the outset it is submitted that the information sought by the Appellant is in relation to the rejection and/or settlement and/or disposal of the claim of BHEL with the National Insurance Company Limited for damage of 600 MW TG Stator which met 3 with an accident during transit from BHEL Haridwar to Chennai against Insurance Policy No. 350600/44/08/5050000011.
8. It is submitted that the information sought by the Appellant entails involvement of public funds as such also involving public interest, cannot in any manner whatsoever said to be prejudicial to the economic interest of BHEL. It is submitted that any information regarding rejection and/or settlement and/or disposal of Claim of BHEL with National Insurance Company Private Limited, involves public fund as such also involves public interest.
9. It is pertinent to note here both National Insurance Company Limited and BHEL are not some private entity, but Central Public Sector Undertaking (Public Authority) which itself are bound to disclose the information under the provisions of RTI Act which are being deliberately withheld.
10. It is submitted that BHEL being a Central Public Sector Undertaking which has also been recognized as an entity of strategic importance to the nation, therefore, every act and/ or action of BHEL in relation to rejection and/or settlement and/or disposal of claim would be public activity since funds of the public are involved, hence, any rejection and/or settlement and/or disposal of claim by National Insurance Company Limited of BHEL for damage of 600 MW TO Stator which met an accident during transit from BHEL Haridwar to Chennai against Insurance Policy No. 350600/44108/5050000011 is an information of great public importance as such involving public interest.
11. It is submitted that BHEL cannot hide the information related to rejection and/or settlement and/or disposal of a huge claim of over 25 Crores from the public. That the touchstone of transparency and accountability requires BHEL to disclose complete facts in relation to such a huge rejection of its insurance claim. Reliance in this regard is placed on the Judgement of Hon'ble Supreme Court in the case of Central Board of Secondary Education v. Aditya Bandopadhyay & Ors. [(2011) 8 SCC 497] wherein it was held that the object of RT1 Act is to facilitate disclosure of information which promotes transparency and accountability in the working of every public authority, disclosure of which may also help in containing or discouraging corruption'
12. It is submitted that any loss to BHEL is a loss to nation as well as to the funds of the public and therefore the facts surrounding rejection and/or settlement and/or disposal of its insurance claim cannot be allowed to be concealed.
GROUND-WISE SUBMISSIONS:
Submission No. 1: THE INFORMATION SOUGHT BY THE APPELLANT WOULD NOT PREJUDICIALLY AFFECT THE SOVEREIGNTY AND INTEGRITY OF INDIA, THE SECURITY, 4 STRATEGIC, SCIENTIFIC OR ECONOMIC INTEREST OF THE STATE, RELATION WITH FOREIGN STATE OR LEAD TO INCITEMENT OF AN OFFENCE, HENCE THE EXEMPTION SOUGHT BY THE CPIO AND THE FAA UNDER SECTION 8(1)(a) OF THE RTI ACT ARE VAGUE & ABSURD.
13. It is submitted that the response of the CP1O to the application for information has been made in non-speaking manner without even justifying the applicability of the exemption under Section 8(1)(a) of the RTI Act. That, even otherwise the information sought by the Appellant cannot even remotely or prejudicially affect the economic interest of BHEL and hence the exemption sought under Section 8(1)(a) of the RTI Act is vague and absurd.
xxxx
17. That neither any public interest will be jeopardized by disclosing the information as sought by the Appellant nor any such fact has been highlighted and/or disclosed by the CPIO. It is submitted that no prejudice to the economic interests of the KIEL can be caused in disclosing details of an insurance claim. That the CPIO has failed to indicate as to how disclosure of the information relating to an insurance claim can prejudice the economic interests of BHEL and has blatantly cited the Section 8(1)(a) of the RTI Act.
18. It is submitted that the CPIO has failed to appreciate that the disclosure must prejudicially affect the economic condition of the Country in its broader sense and not merely the entity BHEL, Haridwar. The Hon-ble Supreme Court in the case of Central Board of Secondary Education v. Aditya Bandopadhyay & Ors. [(2011) 8 SCC 497] has held as follows:
"61. Some High Courts have held that Section 8 of the RTI Act is in the nature of an exception to Section 3 which empowers the citizens with the right to information, which is a derivative from the freedom of speech; and that, therefore. Section 8 should be construed strictly. literally and narrowly. This may not be a correct Approach. The Act seeks to bring about a balance between two conflicting interests, as harmony between them is essential for preserving democracy...
Submission No. 2: THE INFORMATION SOUGHT BY THE APPELLANT DOES NOT HARM THE COMPETITIVE POSITION OF THIRD PARTY, HENCE THE EXEMPTION SOUGHT BY THE CPIO AND THE FAA UNDER SECTION 8(1)(d) OF THE RTI ACT ARE VAGUE & ABSURD.
22. It is submitted that the exemption contained under Section 8(1)(d) of the RTI Act applies only in a situation where the disclosure of the information would harm the competitive position of a third party. However, while taking shelter under Section 8(1)(d) of the RTI Act the CPIO and the FAA have failed to identify the third party to whom the alleged harm will be caused.5
23. 23. It is submitted that in the present case the only 'third party' involved is the National Insurance Company Limited which has admittedly not settled the claim of BHEL for damage of 600 MW TG Stator which met an accident during transit from KIEL Haridwar to Chennai against Insurance Policy No. 350600/44/08/5050000011.
24. It is submitted that no commercial confidence and/ or trade secret and/ or intellectual property is involved in the information sought by the Appellant which has been refused by the CPIO and subsequently concurred by FAA by merely citing Section 8(1)(d) of the RTI Act without any justification of applicability of exemption sought under Section 8(1)(a) of the RTI Act. It is submitted that any challenge to the rejection of insurance claim by KIEL is neither a commercial confidence nor a trade secret nor an intellectual property as has been presumed by the CPIO and subsequently concurred by the FAA. Hence, the CPIO and FAA has taken shelter under these loose expressions to withhold information from the Appellant.
xxxxxx 26 It is submitted that the information sought by the Appellant involves public interest in the form of loss, if any, suffered by BHEL on account of rejection and/or settlement and/or disposal, if any, of insurance claim of huge sum of over 25 Crores. therefore, hiding details of rejection and/or settlement and/or disposal, if any, of insurance claim of BHEL of a huge sum of over 25 Crores clearly establishes the deep routed strings of corruption involved and attempt on the part of the CPIO to hide the same from the public, since being a public authority, BHEL entails involvement of public funds as such involving public interest.
xxxxxx Submission No. 3: THE INFORMATION SOUGHT BY THE APPELLANT WOULD NOT IMPEDE THE PROCESS OF INVESTIGATION OR APPREHENSION OR PROSECUTION OF OFFENDERS, HENCE THE EXEMPTION SOUGHT BY THE CPIO AND THE FAA UNDER SECTION 8(1)(h) OF THE RTI ACT ARE VAGUE, ABSURD AND WITHOUT APPLICATION OF MIND.
35. It is submitted that the exemption contained under Section 8(1 )(h) of the RTI Act applies in a situation where the information will impede the process of investigation or apprehension or prosecution of offenders. However, the CPIO has failed to substantiate any sort of impediment which may be caused and has even failed to justify the applicability of the exemption under Section 8(1)(h) of the RTI Act and has merely taken guise under Section 8 of the RTI Act to deny information to the Appellant which BHEL, being a Central Public Sector Undertaking is bound to disclose.
36. That the CPIO and the FAA has denied the information on the pretext of pending arbitration proceeding qua has sought exemption under Section 8(1)(h) of the RTI Act. It is submitted that there is no information involved as sought by the Appellant which may hinder, hamper and impede the arbitration proceedings as cited by the CPIO and 6 subsequently conquered by the FAA. It is pertinent to note here that 'arbitration proceedings' are not and cannot be covered under the terms 'investigation', 'apprehension or prosecution of offenders' qua Section 8(1)(h) of the RTI Act. Therefore, denial of information by merely citing Section 8(1)(h) of the RTI Act clearly establishes the fact that CPIO is hell bent in concealing important information related to the public funds under the guise of exemptions under Section 8 of the RTI Act. ..."
Per contra, the CPIO reiterated there denial of information under Section 8(1)(a), 8(1)(d) and Section 8(1)(h) of RTI Act with the following arguments -
"- This is to inform to the Hon'ble Commission that the RTI queries/ information sought by the appellant belong to the transportation of a TG Stator from BHEL Haridwar to Chennai, where MIs Kataria Carriers, Kanpur was the transporter. The vehicle carrying TG Stator, during transit, met an accident and TG Stator fell into the river.
- The information on all the queries sought by the Appellant were replied as per the provisions of RTI Act and within stipulated time.
- Also, as conveyed to the appellant, through decision of First Appeal Authority on dated 09.07.2021, The BHEL Claim has not been settled by the Insurer i.e. RTI query no. SM.
- In view of ongoing arbitration proceeding of the subject matter and in order to safeguard on the economic interests of BHEL, the information i.e. the correspondence made by BHEL with Insurer and BHEL Corporate office, cannot be shared with appellant and the same is exempted from disclosure under Section 8(I)(a) and Section 8(1) (h). In addition to this, the disclosure of such information is in the nature of commercial confidence and the same is exempted under Section 8(1)(d) of the RTI Act, as such information has no relationship with any public activity or interest and only interests of BHEL are effected due to disclosure of this information..."
At the instance of the Commission, the CPIO further clarified that the arbitration proceedings in the insurance claim although have been concluded and arbitral award has been passed in favour of BHEL, however the concerned transporter has challenged the award by filing an appeal before the Hon'ble High Court which is pending adjudication as on date. He further apprised the Commission that even otherwise, the Appellant has no privity of contract in the said claim vis-a-vis the transporter and/or BHEL.
In response to CPIO's submission, the Advocate of the Appellant stated that the transporter is known to the Appellant and that he has sought the information in the capacity of an informed citizen and being resident of the same city where 7 such big loss of BHEL occurred. Therefore, the information should be provided to the Appellant.
Decision:
The Commission at the outset upon a perusal of records and after scrutinizing the contents of the RTI Application arrives at the conclusion that the queries raised by the Appellant are in the nature of seeking clarifications/explanations from the CPIO based on his interrogatories which concededly do not conform to Section 2(f) of RTI Act. In this regard, the Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act.
His attention is also drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors [CIVIL APPEAL NO.6454 of 2011] wherein it was held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide `advice' or `opinion' to an applicant, nor required to obtain and furnish any `opinion' or `advice' to an applicant. The reference to `opinion' or `advice' in the definition of `information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act." (Emphasis Supplied) Further, even if a liberal interpretation is accorded to the nature of information sought for, the Commission cannot lose sight of the fact that the arbitration proceedings were pending at the time of filing of instant RTI Application. Here it is pertinent to note that issue for determination of arbitration in the instant appeal is squarely covered by the decision of a coordinate bench in the matter of Baleshwar Kumar vs. Ordnance Factory Board, Nalanda (File No. CIC/CC/A/2016/000509/SD) dated 03.01.2017 wherein the following was held:8
"Arbitration is a form of Alternate Dispute Resolution and one of the tenets of such dispute resolution is privacy and confidentiality. This is also apparent from Section 75 of the Arbitration & Conciliation Act, 1991 which states that: 'Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.' Now even so by virtue of Section 22 of the RTI Act, which also is the latter law in force, the above said position of law stands overridden, yet exemptions under Section 8 of the RTI Act allows for denial of information on certain grounds. In the facts of the present case, Commission deems it appropriate to invoke Section 8(1)(j) of the RTI Act in as much as the disclosure of information may cause unwarranted invasion of the privacy of the parties involved in the arbitration and further as a matter involving commercial implications, disclosure at the pendency stage of arbitration may also be detrimental to the interest of the government exchequer which in effect is public money."
Adverting to the rationale of the above quoted decision, the Commission finds that while the CPIO has adequately discharged the onus of justifying the denial of the information sought for in the instant RTI Application under Section 8(1)(j) of the RTI Act, there is no infirmity in the said denial in as much as the arbitration proceedings are pending and disclosure of the information sought for by the Appellant does not warrant any larger public interest. Having observed as above, the Commission finds no scope of intervention in the matter as this stage."
Considering the totality of the facts and circumstances of the instant case, the aforesaid ratio is fully applicable to instant matter as well. In view of the above, no further relief can be granted in the matter.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) 9 Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 10