Central Information Commission
Tinoo Joshi vs Department Of Personnel & Training on 20 January, 2021
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/DOP&T/A/2019/105538
Tinoo Joshi ....अपीलकता /Appellant
VERSUS
बनाम
CPIO,
M/o Personnel, Public
Grievances & Pensions,
Department of Personnel &
Training, North Block,
New Delhi - 110001 .... ितवादीगण /Respondent
Date of Hearing : 20/01/2021
Date of Decision : 20/01/2021
INFORMATION COMMISSIONER: SarojPunhani
Relevant facts emerging from appeal:
RTI application filed on : 19/11/2018
CPIO replied on : 17/12/2018
First appeal filed on : 24/12/2018
First Appellate Authority order : 14/01/2019
2nd Appeal/Complaint dated : 28/01/2019
Information soughtand background of the case:
The Appellant filed RTI application dated 19.11.2018 seeking information through four points:-1
1. "Copy of the entire file No. 107/3/2013-AVD.I (from which the Prosecution sanction order dated 20.01.2014 under section 19 of PC with respect to appellant, Mrs. Tinoo Joshi, IAS, MP-79, was issued).
2. Copy of all correspondence attached to the file No. 107/3/2013-AVD.I.
3. Copy of all documents attached to the file no. 107/3/2013-AVD.I.
4. Copy of all the part files etc. included/attached/linked in that file No. 107/3/2013-AVD.I."
The CPIO denied information to the appellant on 17.12.2018 under section 8(1)(e) & 8(1)(h) of the RTI Act, 2005. Being dissatisfied, the appellant filed a First Appeal dated 24.12.2018. FAA's order dated 14.01.2019 upheld the reply o CPIO.
Grounds for the Second Appeal:
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Represented by Arvind Kumar Joshi through video-conference. Respondent: Raj Kishan Vatsa, Under Secretary & CPIO and Pawan, Section Officer present through intra-video conference.
The Rep. of the Appellant stated that the FAA has erred on three counts while disposing of the Appeal which is that the FAA has sought to equate the State Investigation Agency with the CBI for seeking exemption under the RTI Act, even as there is no express provision in the RTI Act exempting the State Investigation Agencies. That, the FAA has further denied the information on the grounds that it was received from State ACB under the 'Secret Top Secret' category, while Section 22 of the RTI Act has an overriding effect on all inconsistent laws in force. He further stated that the FAA has also erred in stating that for a fair trial before court, proper procedure has been mentioned in the Cr.P.C. and Indian Evidence Act, 1872, and any interference in that procedure amounts to impeding the process of prosecution of offenders and the same is exempted under Section 8(1)(h) of the RTI Act. That, the FAA has not been able to substantiate as to how the process of prosecution of offenders would be impeded by disclosure of the requested information and the same is contrary to various laid down precedents 2 of the superior Courts as well as a decision of the Commission in File No. CIC/SS/A/2O13/OOO46-YA. Lastly, the Rep. of the Appellant stated that the disclosure of information is rather pivotal in view of an Apex Court judgment which observed that if prosecution sanction has not been obtained in accordance with the provisions of Section 19 of the Prevention of Corruption Act then such prosecution is bad in law. That, for the said reasons the Appellant should be able to peruse the relevant records to establish that the process adopted for obtaining the prosecution sanction is in accordance with the law.
The CPIO submitted at the outset that he may not be well versed with the legal connotations of the exemption of Section 8(1)(h) of the RTI Act but he is of the strong belief that since the prosecution of the Appellant is pending, disclosure of the averred file may gravely affect their case as the file contains various details, noting(s), information received from State ACB, premature disclosure of which may lead into influencing the witnesses or the case in toto. He further stated that Section 8(1)(e) of the RTI Act was also invoked to exempt these very records received from the State ACB as being confidential and because there is no larger public interest in the disclosure of the information.
Decision The Commission based on a perusal of the facts on record finds that most of the observations made in the FAA's order are extraneous to the mandate of the RTI Act. For the said reasons, the Commission is not considering the merits of these observations but is limiting the case to the application of Section 8(1)(h) & Section 8(1)(e) of the RTI Act.
Here at the outset, the Commission is rejecting the plea of Section 8(1)(e) of the RTI Act as the CPIO failed to provide any tenable grounds for invoking the said exemption and the arguments tendered by him in this regard bore no relevance to the import of Section 8(1)(e) of the RTI Act. In this regard, attention of the CPIO is brought towards a judgment of the Hon'ble Supreme Court in the matter of Central Board of Sec. Education & ... vs Aditya Bandopadhyay & Ors dated 09.08.2011 on the meaning and ambit of the term 'fiduciary' vis-à-vis the RTI Act.
The relevant portion of the said judgment is reproduced hereunder:
3"The term `fiduciary' refers to a person having a duty to act for the benefit of another, showing good faith and condour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term `fiduciary relationship' is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction/s. The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and expected not to disclose the thing or information to any third party. There are also certain relationships where both the parties have to act in a fiduciary capacity treating the other as the beneficiary. Examples of these are : a partner vis-`-vis another partner and an employer vis-`-vis employee. An employee who comes into possession of business or trade secrets or confidential information relating to the employer in the course of his employment, is expected to act as a fiduciary and cannot disclose it to others. Similarly, if on the request of the employer or official superior or the head of a department, an employee furnishes his personal details and information, to be retained in confidence, the employer, the official superior or departmental head is expected to hold such personal information in confidence as a fiduciary, to be made use of or disclosed only if the employee's conduct or acts are found to be prejudicial to the employer.
But the words `information available to a person in his fiduciary relationship' are used in section 8(1)(e) of RTI Act in its normal and well recognized sense, that is to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary - a trustee with reference to the beneficiary of the trust, a guardian with reference to a minor/physically/infirm/mentally challenged, a parent with reference to a child, a lawyer or a chartered accountant with reference to a client, a doctor or nurse with 4 reference to a patient, an agent with reference to a principal, a partner with reference to another partner, a director of a company with reference to a share- holder, an executor with reference to a legatee, a receiver with reference to the parties to a lis, an employer with reference to the confidential information relating to the employee, and an employee with reference to business dealings/transaction of the employer.
".....That section provides that notwithstanding anything contained in the Act, there shall be no obligation to give any citizen information available to a person in his fiduciary relationship. This would only mean that even if the relationship is fiduciary, the exemption would operate in regard to giving access to the information held in fiduciary relationship, to third parties. There is no question of the fiduciary withholding information relating to the beneficiary, from the beneficiary himself. One of the duties of the fiduciary is to make thorough disclosure of all relevant facts of all transactions between them to the beneficiary, in a fiduciary relationship..."
Further in another matter of Union of India vs. R.S Khan dated 07.10.2010, the Hon'ble Delhi High Court held that:
".......This Court concurs with the view expressed by the CIC that in the context of a government servant performing official functions and making notes on a file about the performance or conduct of another officer, such noting cannot be said to be given to the government pursuant to a 'fiduciary relationship' with the government within the meaning of Section 8(1)(e) of the RTI Act, 2005. Section 8(1)(e) is, at best, a ground to deny information to a third party on the ground that the information sought concerns a government servant, which information is available with the government pursuant to a fiduciary relationship, that such person, has with the government, as an employee.
11. To illustrate, it will be no ground for the Union of India to deny to an employee, against whom the disciplinary proceedings are held, to withhold the information available in the Government files about such employee on the ground that such information has been given to it by some other government official who made the noting in a fiduciary relationship. This can be a ground 5 only to deny disclosure to a third party who may be seeking information about the Petitioner in relation to the disciplinary proceedings held against her. The Union of India, can possibly argue that in view of the fiduciary relationship between the Petitioner and the Union of India it is not obligatory for the Union of India to disclose the information about her to a third party. This again is not a blanket immunity against disclosure. In terms of Section 8(1)(e) RTI Act, the Union of India will have to demonstrate that there is no larger public interest which warrants disclosure of such information. The need for the official facing disciplinary inquiry to have to be provided with all the material against such official has been explained in the judgment of the Division Bench of this Court in Union of India v. L.K. Puri 151 DLT 2008, as under:
"The principle of law, on the conjoint reading of the two judgments, as aforesaid, would be that in case there is such material, whether in the form of comments/findings/ advise of UPSC/CVC or other material on which the disciplinary authority acts upon, it is necessary to supply the same to the charge sheeted officer before relying thereupon any imposing the punishment, major or minor, in as much as cardinal principle of law is that one cannot act on material which is neither supplied nor shown to the delinquent official. Otherwise, such advice of UPSC can be furnished to the Government servant along with the copy of the penalty order as well as per Rule 32 of the CCS(CCA) Rules."
Emphasis Supplied A conjoint reading of the aforesaid observations makes it apparent that Section 8(1)(e) of the RTI Act is inapplicable in the facts of the instant case.
However, as regards the applicability of Section 8(1)(h) of the RTI Act is concerned, concededly the original CPIO's reply or the FAA's order does not convey any tenable reasons for denying the information sought for in the RTI Application.
Nonetheless, the submission of the CPIO during the hearing has convinced the Commission that the information sought for cannot be disclosed when the prosecution of the appellant is pending as the averred file contains vital details of 6 the investigation and inputs of related agencies containing witness accounts or evidences, disclosure of which may pose impediment to the prosecution.
In view of the foregoing observations, the Commission partially upholds the denial of the information to the extent that Section 8(1)(h) of the RTI Act is invoked. The CPIO is hereby warned to ensure that denial of the information under any of the exemption clauses of the RTI Act is substantiated with cogent reasons while replying to the RTI Applications in future.
Further, as regards the contention of the Rep. of the Appellant regarding his apprehensions about the process adopted for obtaining the prosecution sanction, the Appellant is advised to agitate the same before the competent Court of Law for proper redressal of her grievances.
With the above observations, the appeal is disposed of accordingly.
SarojPunhani (सरोज पुनहा न) Information Commissioner (सूचना आयु त) Authenticated true copy (अिभ मािणतस"यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / Date 7