Central Information Commission
Mr.Ram Bahadur Rai vs Ministry Of Railways on 7 April, 2010
Central Information Commission
CIC/AD/A/2010/000211
Dated May 20, 2010
Name of the Applicant : Shri Ram Bahadur Rai
Name of the Public Authority : RITES Limited
The judgement was reserved and pronounced on 20 May 2010 in an
open Court.
Background
1. The Applicant filed his RTI application dt.21.7.09 with the PIO, RITES Ltd. He stated that Right to Information empowers the citizens to inspect any government work. Using this provision he would like to inspect to following work being or to be carried out by RITES during 1.8.09 to 31.12.09 along with an expert.
'Inspection and testing of supplies of CG12 Rev 1 vinyl flooring when conducted by RITES Representative at the manufacturer's place which are approved source for supplies'.
Shri A.K.M. Sharma, PIO replied on 17.8.09 stating that the Applicant had not sought any information but wishes to be present along with an expert while RITES Inspecting Engineer inspects and tests the supplies of CG12 Rev 1 vinyl flooring at the manufacturer's premises during the period 1.8.09 to 31.12.09 and denied the same u/s 2(f) of the RTI Act. He further added that witnessing of any inspection/testing of supplies at the manufacturer's premises by the Applicant along with an expert is exempted in terms of Section 8(1) (d) of the RTI Act 2005 which stipulates that information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information. He also requested the Applicant to refer to CIC Decision No.CIC/OK/A/2006/00301 dt.26.12.06 in this regard. Not satisfied with the reply, the Applicant filed an appeal dt.8.9.09 with the Appellate Authority stating that Section 2(j) of the RTI Act gives him power to inspect any govt. work and the information he had sought is his right under the Act. Moreover, PIO has used another clause to deny the information u/s 8(1)(d) of the RTI Act and wondered how can the inspection being done by a Govt. officer can be a problem of commercial confidence, Trade secret or intellectual property right. He further stated that this is a matter of larger public concern since the matter relates to the safety of lakhs of people who travel in train. He brought to the attention of the Appellate Authority that the material tested by RITES had been rejected by RCFKapurthala and ICFChennai and as this product is related to safety, such joint inspection is requested. The inspections are done in laboratory of the manufacturer so there is no reason of providing any secrets of the manufacturer as all lab machines and testing methods are approved by RDSO. If it is a factory visit, then only the commercial confidential matters are involved which he is not asking for and requested the Appellate Authority to direct the PIO to arrange his visit accordingly. Shri Rahul Jha, Appellate Authority vide his order dt.15.10.09 upheld the decision of the PIO. Being aggrieved with the reply, the Applicant filed a second appeal dt.2.12.09 before the CIC. He stated that inspection is done on behalf of the public. The purpose of such inspection is to check any deficiency or malafide practice in the process or product. So, if the process of inspection by the officer is not creating any harm/affect competitive position, commercial interest, trade secrets and/or intellectual property of the firm, then how can the presence of a citizen under RTI Act affect the same. Moreover, he had applied to inspect the work of the officer who is working on behalf of the public and has no intention to see the details of supply orders received by it and its magnitude, inspection notes and so on to be brought out in public etc. as mentioned in CIC Order No.CIC/OK/A/2006/00301 dt.26.12.06. He further added that the RTI Act empowers him to inspect any work being done by the officer and invited the attention of the Commission that this right is not limited to the inspection of work being done by the Govt. in some Govt. campus only.
2. The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the hearing for April 7, 2010.
3. Shri A.K.M. Sharma, PIO and Shri D.K. Sinha, Dy. GM(M&C) represented the Public Authority.
4. The Applicant was represented by Shri Neeraj Kumar during the hearing. Hearing
5. The Commission received a rejoinder dated 6.4.10 from Shri A.K.M. Sharma, PIO, RITES in which he stated that being a consultancy organization, RITES services are the intellectual property of its clients and RITES has to maintain strict commercial confidence. Disclosure of its reports would adversely affect the competitive and commercial position of the organization and would injure the fiduciary relationship with its clients.
6. During the hearing, Shri Sharma submitted that RITES has no objection to being scrutinized by a committee comprising experts on the subject on the insistence of a higher authority, if required. He added that inspection was carried out by the RITES in the course of rendering consultancy services to various organizations like Railways, Roads & Highways, Airports, Ports, Harbours etc. Being a company rendering such service under the Ministry of Railways, Government of India, the services rendered by the Respondent were intellectual property of its clients, wherein strict commercial confidence had to be exercised.
7. The Commission after hearing the detailed arguments by both parties, is of the considered opinion that the inspection in question was a job entrusted by the Ministry of Railways, therefore, the Ministry is an essential Third Party and it is necessary that the Ministry be given a fair chance of being heard and to submit their views on the confidentiality of the transaction. Accordingly the Commission schedules the hearing of the case on 17th May 2010 and notices thereof are being sent to the RCF, Kapurthala; RITEs and the Appellant for submission of their contention on or before the date of hearing.
8. Shri A.K.M. Sharma, PIO/Group General Manager; Sh. Rahul Jha, Executive Director (CS); Col. C B Pandey, Dy. General Manager [I], RITES and Shri Gurjeet Singh Sr. PRO & PIO, Railway Coach Factory, Kapurthala represented the Public Authority.
9. The contact with the Appellant could not be established through telephone due to some inadvertent error. However, subsequently, the Appellant made his submission over the telephone.
Decision
10. The Commission received a communication dated 11.05.2010 from the Railway Coach Factory, Kapurthala, the Third Party in this case. The CDE & Appellate Authority, RCF, Kapurthala has submitted that while any citizen of the country is empowered under the RTI Act to seek information and inspect the work, documents, records etc under the provisions of the Section 2 (j) (i), in the instant case, information sought by the Appellant relates to inspection of the process of inspection conducted by the Respondent at the premises of the Third party. It is the contention of the RCF that since no product/construction/development is resulting out of the activity of inspection, therefore the process of inspection cannot be considered as work under Section 2 (j) (i) of the RTI Act 2005 neither the information as sought by the Appellant in his RTI request qualifies as "information" under the scope of Section 2 (f) of the RTI Act 2005. The RCF further submitted that tests/inspections conducted by RITES are in terms of specifications as laid by RDSO. The RCF went ahead to submit that they had no objection to the Appellant taking sample, on payment and getting the same inspected at some independent test house, in case the Appellant felt that the inspection is not done properly, or even to the Appellant making appropriate representation before the RCF Administration.
11. From the arguments of the parties and the documents available on record, it is observed that the Appellant herein has sought inspection and testing of supplies of CG12 Rev 1 vinyl flooring, conducted by RITES representative in terms of provision of the RTI Act 2005. In this context it is pertinent to discuss the provisions of the RTI Act 2005, specifically the definition clauses, Section 2 (f) defining "information", Section 2 (i) defining "record" and Section 2 (j) defining "right to information" as follows:
Section 2 Definitions
(f) "information" means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
(i) "record" includes--
(a) any document, manuscript and file;
(b) any microfilm, microfiche and facsimile copy of a document;
(c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and
(d) any other material produced by a computer or any other device;
(j) "right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to--
(i) inspection of work, documents, records;
(ii) taking notes, extracts or certified copies of documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies, tapes,
video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;
It is pertinent to note that in the instant case, the Appellant has sought inspection of the "process of inspection" rather than the outcome of the process reduced in the form of a report. The process of inspection sought to be inspected by the Appellant, does not qualify as "information" since it does not fall within any of the specifications as stated in Section 2 (f) as discussed hereinabove. The process of inspection is neither a record, nor document, nor email, opinion, advice nor does it qualify as information under any of the other clauses of Section 2(f) of the RTI Act. The "process of inspection" which is sought to be inspected by the Appellant does not qualify as a "record" defined under the Section 2 (i) of the RTI Act 2005 either. Hence the "right to information" as ensured under Section 2(j) of the RTI Act 2005, specifically the clause Section 2(j) (i) which makes "inspection of work, documents, records;...... " accessible is not applicable to this case. Since no documents, records etc exists about the "process of inspection", hence no work, in the form of a report, as an outcome of an inspection is available to be inspected by the Appellant.
12. While reading the provisions of any Act the cardinal principle of interpretation of statutes laying down that the various relevant provisions of any Statute/Act must be read together for a harmonious construction of the true purport of the Statute should by no means be lost sight of. Likewise, the provisions of Section 2(j) (i) of the RTI Act 2005 cannot be read in isolation and must be read harmoniously alongwith the provisions of Section 2 (f) and Section 2(i) of the RTI Act 2005, so as to construe the true intent of the RTI Act. The Appellant is however allowed to obtain samples of the supplies of CG12 Rev 1 vinyl flooring, under provisions of the Section 2(j) (iii) of the Act, which the Appellant may get tested from an independent expert on his own. However, as discussed above, the scope and ambit of the RTI Act does not provide for a citizen to inspect an ongoing inspection process till the outcome thereof is reduced to records forming information. In the event that such requests are allowed, it will only allow more and more volunteers seeking to inspect and oversee such inspection processes being carried out by experts.
(Annapurna Dixit) Information Commissioner Authenticated true copy:
(G.Subramanian) Deputy. Registrar Cc:
1. Shri Ram Bahadur Rai H.No.5/118 Rachna Single Storey Vaishali Ghaziabad 201 012
2. The PIO RITES Limited RITES Bhawan No.1, Sector 29 Gurgaon
3. The Appellate Authority RITES Limited RITES Bhawan No.1, Sector 29 Gurgaon
4. Officer incharge, NIC
5. Press E Group, CIC