Central Information Commission
Mrsunil Kumarjohar vs National Thermal Power Corporation on 28 March, 2016
CENTRAL INFORMATION COMMISSION
August Kranti Bhawan, Bhikaji Cama Place,
New Delhi-110066
F.No. CIC/YA/A/2015/902350
Date of Hearing : 03.02.2016
Date of Decision : 28.03.2016
Complainant/Appellant : Shri Sunil Kumar Johar
Delhi
Respondent : Shri P.K. Yadav
NTPC, Delhi
Information Commissioner : Shri Yashovardhan Azad
Relevant facts emerging from complaint/appeal:
RTI application filed on : 27.04.2015
CPIO replied on : 06.07.2015
First Appeal filed on : 27.07.2015
First Appellate Authority (FAA) order on : 20.08.2015
Complaint/ Second Appeal received on : 29.10.2015
Information Sought:
The appellant sought information on 13 points related to NTPC Self Contributory
Superannuation Benefit (Pension) Scheme.
Background of the Case:
The appellant filed an RTI application on 27.04.2015 seeking the above information. CPIO vide his letter dated 06.07.2015 provided point wise reply to the appellant. The FAA in his order upheld the reply of the CPIO.
Relevant facts emerging during hearing:
Both parties are present and heard. The appellant has placed on record written submissions during the hearing stating that a Self Contributory Superannuation Benefits (Pension) Scheme was approved in the 141st Meeting of NTPC's Board of Directors held on 18.03.1994 and was consequently introduced for Executives and Supervisory Category of employees vide circular dated 09.10.1997. Thereafter, the scheme was modified vide circular dated 02.02.2003 reducing the amount of pension payable to pensioners. He stated that he wanted certified copies of board note on the basis of which the said scheme was implemented and later on modified. The respondent stated that information sought contains information relating to trade secrets or intellectual property and the Board Note & Board Resolution held by them are held in fiduciary capacity, thus, disclosure of the same was denied u/s 8(1)(d) & (e) of the RTI Act. He further submits that usually matters of confidential nature are discussed at the Board Meeting and disclosure of the same may harm commercial interest of the company. He also submitted that a legal opinion was also taken in 2009 from the then Solicitor General of India wherein he opined that Directors stand in a fiduciary capacity in relation to company and its shareholders is fiduciary in nature. The respondent vide their written submission dated 12.02.2016 has submitted as under:-
"NTPC is a Company registered under the Companies Act, 1956. All the matters pertaining to Board Meeting, recording of minutes, filling of returns and resolutions are being carried out as per the Companies Act, 2013 and Securities and Exchange Board of India (Listing Obligation and Disclosures' Requirements) Regulations, 2015 ("SEBI LODR Regulations") for listed companies like NTPC Limited. Over the years the company has formed 5 Subsidiaries and 21 joint venture companies and the Board Meeting, 15 Sub-Committee of the Board, Board Meeting of Joint Ventures and Subsidiaries Companies etc. are being conducted at frequent interval and the information besides being voluminous, information as such is not allowed under section 117(3)(g) of the Companies Act 2013 which provided that no person shall be entitled under section 399 (Inspection, Production and evidence of documents kept by registrar) to inspect or obtain copies of such resolutions and agreement to be filed with Registrar. The disclosure would amount to creation of huge information putting undue burden on the resources of NTPC beside legal provisions Usually matters of the confidential nature are discussed at the Board meeting and the disclosure of the same may harm the commercial interest of the Company. In view of the confidential nature of Board minutes, under the provisions of the Companies Act, even members of the Company don't have right to inspect to take copies of the minutes of the Board of Directors.
Keeping in view, provisions of the Companies Act, exemptions available under RTI Act and opinion of then SGI, we are not providing copies of Board minutes under RTI. However, there are several judgements of Central Information Commission, in which copy of Board resolution were allowed unless the same is falling under commercial confidence, trade secrets or intellectual property."
Decision:-
After hearing both parties and on perusal of record, the Commission notes that the appellant has sought copy of the Board Note, on grounds of public interest since it was on the basis of this, the pension scheme was approved in a meeting of Board of Director. The respondent meanwhile have sought exemption u/s 8(1)(d) & (e) of the RTI Act for denying the same. It is a fact that the pension scheme adopted by the Board's Resolution in 1994 was implemented with effect from 09.10.1997 and later amended by the Pension Trust vide circular dated 02.02.2003, impacting the amount payable to the pensioners. All possible action with respect to Board's Resolutions regarding pension scheme approved by the Board in 1994 have been completed, therefore it does not stand reason as to how the disclosure of the Board note i.e. note prepared by the concerned unit/department for the benefit of deliberations by the Board in 1994, can harm the competitive interest of NTPC. Further, the Board note is ordinarily a note prepared for the perusal of the Board of Directors for taking a decision during a meeting of the Board of Directors; it does not reflect the views of the individual members which would form a part of the minutes of the board meeting. In a similar case adjudicated by the Commission in the case of M.S. Sidhu Vs. Oriental Bank of Commerce, the Commission had observed as under:-
". . .5. We do not agree with the contention of the CPIO and the Appellate Authority that the Board note on VRS can be withheld under any of the exemption provisions of the RTI Act.
6. In view of the above, we direct the CPIO to provide to the appellant within 10 working days from the receipt of this order the following information;
i) A copy of the VRS as sent by the IBA
ii) A copy of the Board note approving VRS including copies of the enclosures, if any;. . ."
The respondent is accordingly directed to provide a copy of the Board note, specifically dealing with the issue of the Superannuation Benefits (Pension) Scheme to the appellant, within 2 weeks of receipt of this order, under intimation to the Commission. Any deliberations or views of individual members reflected in the said Board note should be redacted before furnishing it to the appellant. With respect to list of beneficiaries of the scheme and details of benefits accruing to each of the pensioner since 1995, the respondents have claimed that the information is not available in the form as desired. It is undisputed that information against a query when not available as sought and as in this case, the information appears to be voluminous as well, the PIO is under no obligation to provide the same, as per the RTI Act. The Commission is therefore not inclined to intervene with the stance taken by the Respondent in this regard.
The appeal is disposed of accordingly.
(Yashovardhan Azad) Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(V.D. Naniwadekar) Designated Officer Copy to:-
Central Public Information Officer under RTI First Appellate Authority under RTI (Shri Pramod K. Yadav), (Shri S. N. Ganguly), N. T. P. C. Limited, N. T. P. C. Limited, NTPC Bhawan, SCOPE Complex, NTPC Bhawan, SCOPE Complex, 7, Institutional Area, Lodhi Road, 7, Institutional Area, Lodhi Road, New Delhi-110003. New Delhi-110003.
Shri Sunil Kumar Johar 317, S.F.S. Flats, Ashok Vihar, Phase-4, Delhi-110052.