Central Information Commission
Mr.Purnanand Trivedi vs Ministry Of Railways on 20 September, 2011
In the Central Information Commission
at
New Delhi
File No: CIC/AD/C/2010/001336
Date of hearing : February, 2, 2011.
Date of Decision : September 20, 2011.
Parties:
Complainant
Mr. Purnanand Trivedi
T - 172D, D S Colony,
Jodhpur,
Rajasthan
Represented by: Complainant in person
Respondents
The Railway Employees Cooperative Banking Society Limited,
Railway Institute,
Harish Joshi Marg,
Railway Station Road
Jodhpur - 342 001
Represented by: None
Information Commissioner : Mrs. Annapurna Dixit
_________________________________________________________________
Decision Notice
The Society is declared a Public Authority and directed to comply with the provisions of Section 4 and 5 of
the RTI Act 2005.
In the Central Information Commission
at
New Delhi
ORDER
File No: CIC/AD/C/2010/001336 Background
1. The Complainant in the present Complaint raises the question as to whether the Railway Employees' Co operative Banking Society Limited [hereinafter referred to as "the Society"], Jodhpur is a Public Authority. The case was initiated by the RTIapplication dated 10.08.2010, filed with the Chief Executive, The Railway Employees' Cooperative Banking Society Limited, Jodhpur, through which the Applicant, interalia, sought information with respect to the functioning of the said society, specifically with respect to the recruitment rules regarding the Group C and Group D employees, Service Rules, various tenders floated and rules relating to the same etc. asked in the form of ten questions.
2. The CEO replied vide communication dated 19.08.2010 denying any information on the premise that the Society fell outside the ambit of the RTI Act 2005. Upon non receipt of the requested information from the Society the Complainant filed the instant case before the Commission putting forth the following arguments in support of his contention that the RECBS, Jodhpur is a Public Authority.
a) RTI Act is applicable to every Public Sector undertaking since the interest of the general publc is involved.
b) The DRM, NW Rly, is the exofficio Chairman of the Society.
c) Board of Directors and delegates are all Railway staff for whom free passes are given by the Railways .
d) A building has been provided to the Society for running its business on highly subsidized rent .
e) In the AGM meeting special passes and special leave facility is provided by the Railways to delegates
to attend the meeting.
f) The present CEO is a railway employee and is presently on deputation in the Society.
g) The main business of the Society is to provide banking services to the Railway employees.
3. Issue
2
It is clear from the submissions on record that the matter that needs to be decided is whether the RECBS, Jodhpur is a Public Authority or not as per the definition given under Section 2(h) of the RTI Act .
4. Subsequent to the hearing conducted by the Commission on 02.02.2011, a letter was issued on 11.02.2011 directing the Respondents to file a written submission providing the details (about management and administrative control over the affairs of the organization including copies of recent audited balance sheets etc. for the past four years, origin and formation of the organization whether dependent on any Act, Bye laws etc.) The Respondents accordingly filed their written submission dated 19.03.2011 before the Commission. No further submission however was received from the Appellant.
Decision
5. The Respondent contended in his written submission dated 19.3.11 that the Society herein is neither owned nor funded, or controlled by the State and did not fall within the purview of the RTI Act. Therefore the Society is not bound by any directions issued by the Registrar . He stated that in the case of P. Bhaskaran &Ors.Vs. Addnl. Secretary, Agricultural (Cooperation Department &Ors.)AIR 1998 Kerala 1975 (Full Bench) it has been held that the Cooperative Societies are not statutory bodies and that they are only functioning in accordance with the provisions of the Act. The Court has ruled that these Institutions would have legal existence even if the Cooperative Society Act was not in force. The Respondent argued that the Government has no shares in the Cooperative Society and that the Society is not an "imprint of the State under Article 12". The Respondent further contended that as per the 'Banko' a Cooperative Bank reference book, IT Act 2005 the Central Government Act is not applicable to the Urban CoOperative Bank and that this position has been upheld by the Chief Information Commissioner , Maharashtra State in the case of Vita Merchants Cooperative Bank, District Sangli Vs, Shri Rajendra Mhetre .
6. Elaborating upon the source of Corpus Fund for the running of day to day affairs of the Society as also about the management and administrative control over the affairs of the Organization the Respondent mentioned that the same lies with the elected members of the Board of Directors of the CoOperative Banking Society prescribed under the MultiState CoOperative Societies Act , 2002.
7. The Respondent reiterated that the premises have been constructed by the Society itself on the land which has been taken by it on lease from the Railways and that the Society is paying lease rental to the Railways regularly. According to the Respondent, while the water and electricity connections have been provided by the State Government in the name of the Society, it is the Society which is paying for the bills regularly. The free Railway passes according to the Respondent are being issued to only the permanent employees of the Society by the Welfare Department of Railways. It was further contended by the Respondent that the Society is meant for the savings of Railway employees 3 and that there is no share of State Government or Central Government or Railways in this Society from either State/Central Government of Railways .
8. It is useful at this stage to refer to the Section 2(h) of the RTI Act which is as follows:
" public authority means any authority or body or Institution of self government established or constituted
a) by or under the Constitution
b) by any other law made by the Parliament
c) by any other law made by the State Legislature
d) by notification issued or order made by the appropriate Government and includes any
i) body owned , controlled or substantially financed
ii) nonGovernment organization substantially financed , directly or indirectly by funds provided by the appropriate Government.
9. On perusal of the submissions filed by the Respondents, and with reference to subclause 2(h)(d)(i) of the RTI Act , it is noted as given in para 5 that the Society has not been created by the CoOperative Societies Act and therefore is not a statutory body and also that even if the Act was not in force this Society would have its legal existence. It was also noted that the Management and Administrative control lies with elected members of the Board of Directors of the Cooperative Banking Society prescribed under the MultiState Cooperative Societies Act, 2002.
10. While considering whether the Society is being substantially financed, directly or indirectly and also whether it is being controlled by the appropriate Government, the Commission noted that although the Ministry of Railways has no shares in this CoOperative Banking Society, 4000 sq. ft of land on which the Society's premises are located has been leased out by the Railways to the Society at a paltry sum of Rs. 500 per year. The Commission holds that the land leased out by Railways to the Society at a heavily subsidized rental, amounts to indirect funding in favour of the Society.
11. With regard to whether the Society is "controlled" by the appropriate Government , in this case the Ministry of Railways, the Commission would like to quote from the ruling by the Delhi High Court in the case of Krishak Bharti cooperative Ltd. Vs, Ramesh Chander Bawa dated 14.5.10 ....... "As regards 'controlled' it is significant that the Registrar of the MSCS is an officer appointed by the Central Government. Direct or indirect control over the affairs of an MSCS like KRIBHCO is possible even through the 4 nominee directors of the Central Government. The nominee Directors may not constitute a majority of the Board of Directors , However, they could well influence, directly or indirectly, and control its decisions. In the meeting of the Board of Directors, even if some members are in a minority, they may still be able to persuade the others to agree to their point of view ".
The Court further observed that :
......."There is a mistake in assuming that the word 'control' has to mean majority control. There can be control by a minority as well. The controlling interest need not be numerically in the majority. Therefore, the absence of any adjective like 'deep ' or pervasive' qualifying the word 'controlled in Section 2(h) of the RTI Act, means that any control over the body by the Central Government will suffice to make it a Public Authority. "
12. The Commission, while extending the scope of the law as mentioned in para 10 hereinabove to cover the instant case wherein both the Appellant and the Respondents have admitted that the DRM, NW Rly, Jodhpur Division is an exofficio member of the Society and that the members on the Board of Directors are also senior Government officials, as also the Chief Executive Officer, firmly believes that the presence of the senior officials of the NW. Railways in the Society as the Chairman, as members of the Board of Directors and also as the CEO adequately establishes the 'control' of the Railways on the functioning of the Society. In this connection , the attention of the Commission is further drawn towards the Delhi High Court's decision in the case of National Agricultural Cooperative Federation of India Ltd. Vs. B.M. Verma , in which the Court observed that :
... "even if at a given point of time there is no tangible, visible control the structure of an MSCS like NAFED is such, that it is always amenable to Government control. This is what is relevant for the purpose of definition of 'Public Authority' under Section 2(h) of the RTI Act."
13. It is pertinent that we also take cognizance at this stage of the following extract from the 'Epilogue' in the Delhi High Court's judgment in the 3 cases pertaining to the MSCS KRIBHCO, NAFED and NCCF , which reads as follows:
....." What was said of the working of a Government in a democracy in S.P. Gupta vs. Union of India (1981) Supp SCC 87 should hold good for the working of a multistate cooperative society too. The Court there said 5 (SCC .p.453) : 'In a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct , there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries' . In the context of Multi State Cooperative Societies, which by their very nature facilitate participatory decisionmaking through a network of elected bodies at different levels, the opening up of their working to public scrutiny through the RTI Act can only be in their best interest" , This legal proposition has once again been adopted by the Delhi High Court while holding that IFCI Ltd. is a Public Authority in the matter of IFCI Ltd. versus Ravinder Balwani in the case of WP (C) 4596/2007 pronounced on 17.08.2010. Even the Railway Housing Cooperative Society and the Northern Railway Consumer Society, were declared as Public Authorities on similar premises. In a catena of judgments, both the Commission as well as the High Court of Delhi have thus held such organizations as possessing the characteristics of the Multi State Co operative Societies to be Public Authorities on similar grounds.
14. Hence, the Commission declares that the instant Society viz. The Railway Employees' Cooperative Banking Society Limited, Jodhpur is a Public Authority. The Society is directed therefore directed to comply with the provisions of the Section 4 of the RTI Act 2005 and the PIO is directed to be designated at the earliest as per provisions of Section 5 of the RTI Act 2005 and information be provided to the Complainant by the 26th of October, 2011.
(Annapurna Dixit) Information Commissioner Authenticated true copy (G.Subramanian) Deputy Registrar Announced in open court on 20 September, 2011.
Cc:
1. Mr. Purnanand Trivedi T - 172D, D S Colony, Jodhpur, Rajasthan
2. The Railway Employees Cooperative Banking Society Limited, 6 Railway Institute, Harish Joshi Marg, Railway Station Road Jodhpur - 342 001
3. Officer in charge, NIC Note: In case, the Commission's above directives have not been complied with by the Respondents, the Appellant/Appellant may file a formal complaint with the Commission under Section 18(1) of the RTIAct, giving (1) copy of RTIapplication, (2) copy of PIO's reply, (3) copy of the decision of the first Appellate Authority, (4) copy of the Commission's decision, and (5) any other documents which he/she considers to be necessary for deciding the complaint. In the prayer, the Appellant/Appellant may indicate, what information has not been provided. 7