Central Information Commission
Pradeep Tandon vs Indian Academy Of Highway Engineers ... on 2 November, 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/IAOHE/A/2022/131071
Pradeep Tandon ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Indian Academy of Highway
Engineers, RTI Cell, A-5 NH-24
Bypass, Institutional Area,
Sector-62, Noida,
Uttar Pradesh-201301 .... ितवादीगण /Respondent
Date of Hearing : 31/10/2022
Date of Decision : 31/10/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 25/04/2022
CPIO replied on : 06/05/2022
First appeal filed on : 17/05/2022
First Appellate Authority order : 20/06/2022
2nd Appeal/Complaint dated : 23/06/2022
Information sought:
The Appellant filed an RTI application dated 25.04.2022 seeking the following information:
(I) "Please arrange physical file inspection of IAHE- NIQ lAHE/Admin/14/BW-
R&P/2021 & 22 dated 05-04-2022.
1(II) Please provide the work award letter of IAHE- NIQ IAHE-Admin/14/BW-
R&PI2021 & 22 dated 05-04-2022 (III) Please provide the physical file inspection of NIT lAHE/Admin/31/Auditorium Renovation 2018-19. (IV) Please, provide the copy of work award letter issued in respect of Nil IAHE/Admin./31/Auditorium/Renovation/2018-19."
The CPIO furnished a point wise reply to the appellant on 06.05.2022.
Being dissatisfied, the appellant filed a First Appeal dated 17.05.2022. FAA's order dated 20.06.2022 held as under:-
".......information as desired vide S. No. 3 and S. No. 4 of RTI application cannot be acceded to at present under section 8 (d) and 8 (h) of the RTI Act, 2005."
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through audio-conference.
Respondent: Dinesh Kumar Sharma, Joint Director & CPIO present through intra- video conference.
The Appellant stated that his latest written submission filed prior to hearing may be considered for disposal of instant Appeal. The relevant extracts of his written submission are reproduced below for ready reference -
1. xxxxxx.
2. Our Company (Connect Fittings Private Limited) were awarded a contract for execution of work i.e. Structural repair of exterior damages components of trainees hostel building of Indian Academy of Highway Engineers A-5 Sector-62 at Noida, U.P. vide agreement dated 08-01-2021, having value of Rs.
1,25,58,304.77 (Rs. xxxxxxx) Annexure 01
3. The awarded work was not executed due to two officers of IAHE namely Shri. Sunil Kumar Gupta and Dr. Sanjay Wakchaure, who were directly involved in the execution of work. Deputy Director-NFSG-1 Shri. Sunil Kumar Gupta-NFSG-1 2 demanded Rs. 10,000,000.00 (Rs. xxxxxxx ) as token of issuing acceptance letter I award of work, which was question by me (Pradeep Tandon), the Deputy Director-NFSG-1 Shri. Sunil Kumar Gupta told me (Pradeep Tandon) that the money will be distributed among two directors (Additional Director Dr. Sanjay Wakchaure and himself), Shri. Sunil Kumar Gupta took me (Pradeep Tandon) to Additional Director Dr. Sanjay Wakchaure and Additional Director Dr. Sanjay Wakchaure asked me to do as Mr. Sunil Gupta is telling.
4. I discarded the personal interest shown by both Directors and emphasized on site allotment take over so that work can be started in time as per agreement date.
5. In spite of lot of hurdle created during execution by these two officers of IAHE, we (Connect Fittings Private Limited) completed the work of Rs. 54,43,00,00.00 Lakhs, which was approximately 43% of total work Annexure
02.
6. We reported the matter to Central Vigilance Commissioner, Satarkta Bhavan, Block-A GPO Complex, INA New Delhi -110 023 along with Chief Vigilance Office Ministry of Transport Road Transport Bhawan, 1, New Delhi-110001......... Annexure 03.
xxxxxxxxxxx
7. To strengthen our case in CVC, CVO and Court, I Pradeep Tandon started obtaining information through RTI and the RTI was placed with the help of Pradeep Kumar Mishra dated 25-03-2021 Annexure 04.
8. The RTI dated 26-08-2021 were filed by me (Pradeep Tandon), The IAHE came to know that information may put these officers in trouble so IAHE started hiding the information asked under RTI ad 2005.........Annexure 05.
9.The RTI dated 25-4-2022 were filed to obtain important information, however information under serial no (iii) and (iv) was denied by CPIO vide letter lOAHE/Admin/04/RTI/2022-23 dated 28-05-2022 (As matter is sub-judice being under the dispute resolution). An appeal to the First Appellate Authority was filed dated 17-05-2022. The First Appellate passed an order dated 2GiO&i2O22 favouring IAHE official to hide the information which was sought in public interest, however in RTI reply dated 28-06-2022, there was no such case pending in connection with information asked, which shows information was 3 deliberately not disclosed (refer serial no. 03, the ongoing case does not belongs to information denied in RTI reply by CPIO) ........Annexure 06
10. An online RTI filed vide registration no. IAOHE/R/A220O158 dated 28-05- 2022 categorically seeking one ref, important information under serial no. 4 and 5 in RTI to strengthen our case with GVC, CVO and in court, which was denied by CPIO. An appeal dated 29-08-2022 was filed by me (Pradeep Tandon). The First Appellate passed and order dated 28-07-2022, which provided part information and intentionally did not disclosed information asked under serial no. 4 & 5, which is vital information to strengthen my case in court against corruption charges against IAHE officers' which is against IAHE officers, which is for public interest........ Annexure 07 In addition to above, the Appellant restricted his arguments to the fact that copy of work orders as sought for at point no. 5 were not provided to him ignoring the fact that such work orders relates to the contract which was awarded to his company but not executed owing to the fault/inaction of Respondent Company.This led him to approach the arbitration platform.
In response to points no. 4 & 5 of RTI Application, the CPIO also invited attention of the bench towards his written submission dated 04.10.2022, relevant extracts of which is as under -
"....It may be noted that applicant was one of the contractors for the repair of hostel building work at IAHE campus who have raised the dispute matter to the arbitration tribunal. Moreover he was seeking information of other contractors. Due to conflict of interest and 31d party information it was denied.
Further, it may be noted that the applicant had filed 9 RTIs and 3 1st Appeals during 2021 and 2022 apart from complaints in CVC and MoRTH. It may be seen that the RTIs are not made in public interest....."
To a query from the Commission, the CPIO clarified that as on date the arbitration proceeding is over and arbitral award has been ordered; however the Appellant has sought details of a third party contractor which has been denied to him under Section 8(1)(d) of RTI Act.
Decision:
The Commission upon a perusal of records and after hearing submissions of both the parties is of the considered view that the core premise raised in the instant 4 Appeal was denial of information of work orders of third party contractor by the CPIO under Section 8(1)(d) of RTI Act ignoring the fact that appellant's firm was also one of the contractors to whom the tender for renovation of auditorium was awarded but not executed by them solely as other contractors were also involved in the work. In this regard, the Commission is in agreement with the denial of information by the Section 8(1)(d) of RTI Act. For the sake of clarity, attention of the parties is drawn towards the relevant portion of Section 8(1)(d) of the Act which is reproduced below -
(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;
Their attention is also drawn towards a judgement of Hon'ble Delhi High Court regarding the scope and denial of information under Section 8(1)(d) of RTI Act in the matter of Naresh Trehan v. Rakesh Kumar Gupta (W.P.(c) 85/2010) dated 24.11.2014 wherein it was held as under -
"...14. xxxxx It is, thus, essential that information relating to business affairs, which is considered to be confidential by an assessee must remain so, unless it is necessary in larger public interest to disclose the same. If the nature of information is such that disclosure of which may have the propensity of harming one's competitive interests, it would not be necessary to specifically show as to how disclosure of such information would, in fact, harm the competitive interest of a third party. In order to test the applicability of Section 8(1)(d) of the Act it is necessary to first and foremost determine the nature of information and if the nature of information is confidential information relating to the affairs of a private entity that is not obliged to be place in public domain, then it is necessary to consider whether its disclosure can possibly have an adverse effect on third parties.....
xxxx"
Furthermore, that 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, 1996 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."
5Now 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.
In view of the aforesaid, Commission upholds the submission of the CPIO for denying information in response to instant RTI Application under Section 8(1)(d) and also in as much as the arbitration proceedings are pending and disclosure of information sought neither warrants any larger public interest nor has such interest been raised by the Appellant.
Having observed as above, the Commission finds no scope of further intervention in the matter.
The appeal is 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 / 6