Central Information Commission
Subhash Chandra Agrawal vs Reserve Bank Of India on 10 June, 2024
के न्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग,मुननरका
Baba Gangnath Marg, Munirka
नई दिल्ली, New Delhi - 110067
निकायत संख्या / Complaint No. CIC/RBIND/C/2022/116755
Subhash Chandra Agrawal ...निकायतकताग/Complainant
VERSUS
बनाम
City Union Bank Limited, ...प्रनतवािीगण /Respondent
Kumbakonam
Relevant dates emerging from the complaint:
RTI : 11.03.2022 FA : Not on record Complaint: 07.04.2022
CPIO : 31.03.2022 FAO : Not on record Hearing : 28.05.2024
Date of Decision: 10.06.2024
CORAM:
Hon'ble Commissioner
_ANANDI RAMALINGAM
ORDER
1. The Complainant filed an RTI application dated 11.03.2022 seeking information on the following points:
(i) "Complete list of "The Authorised Officer/s" for Credit-Recovery and Management Department of City Union Bank authorised to sign documents relating to recovery-
proceedings including also under "The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002" (SARFAESI Act) Page 1 of 28 for Delhi/New Delhi area from 01.01.2021 till date mentioning date/s for which various such "The Authorised Officer/s" as referred in the query held the post.
(ii) In case different "The Authorised Officer/s" as referred in query (1) above are different for different branches of City Union Bank in Delhi/New Delhi area, such a list of "The Authorised Officer/s" for Chandni Chowk (Delhi) branch of City Union Bank as referred in query (1) above.
(iii) Web-link providing information as sought in queries above.
(iv) Any related information (v) File-notings on movement of RTI application."
2. The Respondent replied vide letter dated 31.03.2022 and the same is reproduced as under:-
" Please note that The Right to Information Act 2005 will not be applicable to us, as endorsed under the preamble of the Act as well as section - 2(h) of the Act 2005 as defined. As per the proviso, the meaning mentioned for public authority will not include Private Bank. "
3. Aggrieved with the Respondent's reply, the Complainant approached the Commission with the instant Complaint dated 07.04.2022 stating inter alia as under:
"City Union Bank is a 118-years old scheduled commercial bank of repute offering all types of banking-services including also savings accounts, current accounts, deposit accounts, loan accounts, debit and credit cards internet and mobile banking, ATM cards for general public. City Union Bank is substantially funded through deposits from general public, and also governed by banking rules framed by Government of India and Reserve Bank of lndia and thus controlled by appropriate government and thus becoming a public- authority under provisions of section 2(h)(d)(i) of RTI Act. 2005. Reference is also invited to full-bench CIC-verdict dated 01.06.2013 in file-number CIC/SM/C/2011/001386 and CIC /SM/C/201 l/000838 in the matter "Anil Bairwal and Subhash Chandra Agrawal versus lndian National Congress and five other political parties" wherein it was also Page 2 of 28 observed that since political parties perform public functioning, these should be under purview of RTI Act. Likewise scheduled commercial bank also perform public functioning. these should be covered under purview of RTI Act.
Assistant General Manager (lnspection Department) of City Union Bank vide letter CO/INSPECTION/2021-22 dated 31.03.2022 declined information holding that as per section 2(h) of RTI Act. meaning mentioned for public authority will not include Private Bank.
I appeal that penalty may be imposed on concerned ones at City Union Bank and compensation be allowed to me as provided in RTI Act for declining information.."
4. The Complainant was present and assisted by Adv. Pranav Sachdeva in person during the hearing and on behalf of the Respondent, Mr. G Ramakrishna, AGM, attended the hearing through video conference
5. The Complainant and the Respondent were heard in the context of the Complainant's prayer to deem the Respondent office as a public authority as per Section 2(h) of the RTI Act. The Commission took on record the written arguments filed by the Complainant on 22.05.2024 & 26.05.2024; and by the Respondent on 21.05.2024 prior to the hearing. However, for the lack of clarity contained in the averred submissions regarding as to why the Complainant in praying for the Respondent to be declared as a public authority as envisaged under Section 2(h) of the RTI Act, the Commission directed the parties to file their respective written arguments specific to the amenability of the Respondent to Section 2(h) of the RTI Act in the matter within 2 days.
6. Subsequently, the written submissions were received from the parties, contents of which is reproduced hereunder for clarity:
Complainant's written submissions:
"4. It is pertinent to note that at the very outset that, as of now, Public Sector Banks already come within the definition of "Public Authorities" as defined Section 2(h) Page 3 of 28 of the RTI Act. However, Private Sector Banks have not yet been included within the said definition.
5. It is submitted that the distinction between Public Sector Banks and Private Sector Banks is artificial, arbitrary and without any justifiable reason.
6. Public Sector Banks are constituted under the State Bank of India Act, 1955 and Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 / Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980. Presently, there are 12 public sector banks.
7. Private Sector Banks are banking companies licensed to operate under Banking Regulation Act, 1949.
8. Both Public Sector Banks and Private Sector Banks come within the definition of Scheduled Commercial Bank (SCB), which is a commercial bank which has been included in the Second Schedule of the Reserve Bank of India Act, 1934 (RBI Act). As such, both Public Sector Banks and Private Sector Banks are regulated by the RBI. The RBI conducts periodic inspection of both Public Sector Banks as well as Private Sector Banks under Section 35 of the Banking Regulation Act, 1949.
9. It is submitted that Private Sector Banks are the only companies whose key decision makers are treated to be 'Public Servants' by the Hon'ble Supreme Court.
10. In CBI v. Ramesh Gelli, (2016) 3 SCC 788, the lower courts had held that cognizance cannot be taken against the accused in the said case, namely, Ramesh Gelli, Chairman and Managing Director, and Sridhar Subasri, Executive Director of Global Trust Bank, on the ground that they are not public servants. The Hon'ble Supreme Court, in the said judgment, framed and decided the following question of law:
"9. The common question of law involved in these criminal appeals and connected writ petition, filed before us, is: Whether the Chairman, Directors and officers of Global Trust Bank Ltd. (a private bank before its amalgamation with Oriental Bank of Commerce), can be said to be public Page 4 of 28 servants for the purposes of their prosecution in respect of offences punishable under the Prevention of Corruption Act, 1988 or not?"
11. After noting the definition of "public servants" as defined under Section 2(c) of the Prevention of Corruption Act, 1988 and other provisions of the Banking Regulation Act, 1949, the Hon'ble Supreme Court held them to be "public servants" as follows: -
"17. The above definition shows that under sub-clause (viii) contained in Section 2(c) of the PC Act, 1988, a person who holds an office by virtue of which he is authorised or required to perform any public duty, is a public servant. Now, for the purposes of the present case this Court is required to examine as to whether the Chairman/Managing Director or Executive Director of a private bank operating under licence issued by RBI under the Banking Regulation Act, 1949, held/holds an office and performed/performs public duty so as to attract the definition of "public servant" quoted above.
18. Section 2(b) of the PC Act, 1988 defines "public duty" as under: "2. (b) 'public duty' means a duty in the discharge of which the State, the public or the community at large has an interest."
19. But, what is most relevant for the purpose of this case is Section 46- A of the Banking Regulation Act, 1949, which reads as under:
"46-A. Chairman, Director etc., to be public servants for the purposes of Chapter IX of the Penal Code, 1860.--Every Chairman who is appointed on a whole-time basis, Managing Director, Director, auditor, liquidator, manager and any other employee of a banking company shall be deemed to be a public servant for the purposes of Chapter IX of the Penal Code, 1860."
20. Section 46-A was inserted in the Banking Regulation Act, 1949 by Act 95 of 1956 with effect from 14-1-1957. The expression "every Chairman who is appointed on a whole-time basis, Managing Director, Director, auditor" was substituted by Act 20 of 1994 with effect from 31-1-1994 in place of "every Page 5 of 28 Chairman, Director, auditor". As such Managing Director of a banking company is also deemed to be a public servant. In the present case, transactions in question relate to the period subsequent to 31-1-1994.
22. In a recent case of State of Maharashtra v. Brijlal Sadasukh Modani [State of Maharashtra v. Brijlal Sadasukh Modani, (2016) 4 SCC 417] , this Court has observed as under : (SCC para 24) "24. As we notice, the High Court Brijlal v. State of Maharashtra, 2008 SCC Online Bom 1515] has really been swayed by the concept of Article 12 of the Constitution, the provisions contained in the 1949 Act and in a mercurial manner taking note of the fact that the multi-State society is not controlled or aided by the Government has arrived at the conclusion. In our considered opinion, even any grant or any aid at the time of establishment of the society or in any construction or in any structural concept or any aspect would be an aid. We are inclined to think so as the term "aid" has not been defined. A sprinkle of aid to the society will also bring an employee within the definition of "public servant". The concept in entirety has to be observed in the backdrop of corruption.
27. In the light of law laid down by this Court as above, it is clear that object of enactment of the PC Act, 1988, was to make the anti- corruption law more effective and widen its coverage. In view of the definition of "public servant" in Section 46-A of the Banking Regulation Act, 1949 as amended the Managing Director and Executive Director of a banking company operating under the licence issued by Reserve Bank of India, were already public servants, as such they cannot be excluded from the definition of "public servant". We are of the view that over the general definition of "public servant"
given in Section 21 IPC, it is the definition of "public servant" given in the PC Act, 1988, read with Section 46-A of the Banking Regulation Page 6 of 28 Act, which holds the field for the purposes of offences under the said Act. For banking business what cannot be forgotten is Section 46-A of the Banking Regulation Act, 1949 and merely for the reason that Sections 161 to 165-A IPC have been repealed by the PC Act, 1988, relevance of Section 46-A of the Banking Regulation Act, 1949, is not lost.
28 Be it noted that when the Prevention of Corruption Act, 1988 came into force, Section 46-A of the Banking Regulation Act, 1949 was already in place, and since the scope of the PC Act, 1988 was to widen the definition of "public servant". As such, merely for the reason that in 1994, while clarifying the word "Chairman", the legislature did not substitute words "for the purposes of the Prevention of Corruption Act, 1988" for the expression "for the purposes of Chapter IX of the Penal Code, 1860" in Section 46-A of the Banking Regulation Act, 1949, it cannot be said, that the legislature had intention to make Section 46-A inapplicable for the purposes of the PC Act, 1988, by which Sections 161 to 165-A IPC were omitted, and the offences stood replaced by Sections 7 to 12 of the PC Act, 1988.
29. A law which is not shown ultra vires must be given proper meaning. Section 46-A of the Banking Regulation Act, 1949, cannot be left meaningless and requires harmonious construction. As such in our opinion, the Special Judge (CBI) has erred in not taking cognizance of offence punishable under Section 13(2) read with Section 13(1)(d) of the PC Act, 1988. However, we may make it clear that in the present case the accused cannot be said to be public servant within the meaning of Section 21 IPC, as such offence under Section 409 IPC may not get attracted, we leave it open for the trial court to take cognizance of other offences punishable under the Penal Code, if the same gets attracted.
Page 7 of 2830. Therefore, having considered the submissions made before us, and after going through the papers on record, and further keeping in mind the Statement of Objects and Reasons of the Bill relating to the Prevention of Corruption Act, 1988 read with Section 46-A of the Banking Regulation Act, 1949, we are of the opinion that the courts below have erred in law in holding that accused Ramesh Gelli and Sridhar Subasri, who were Chairman/Managing Director and Executive Director of GTB respectively, were not public servants for the purposes of the Prevention of Corruption Act, 1988. As such, the orders impugned are liable to be set aside. Accordingly, without expressing any opinion on final merits of the cases before the trial courts in Mumbai and Delhi, Criminal Appeals Nos. 1077-81 of 2013 filed by CBI, are allowed and Writ Petition (Crl.) No. 167 of 2015 stands dismissed."
12. It is pertinent to mention that Ms. Chanda Kochhar (former managing director and chief executive officer of ICICI) is being tried on charges of corruption under the Prevention of Corruption Act, 1988. As per the Central Bureau of Investigation, Mr. Venugopal Dhoot, Ms. Chanda Kochhar and her husband Mr. Deepak Kochhar had chalked out a plan to give loans from ICICI Bank to Mr. Dhoot's Videocon group after the private sector lender announced the appointment of Ms. Kochhar as its CEO and MD.
13. It is submitted that banks (both public and private) are financed by public money and public funds, and hence, private sector banks stand on same footing as public sector banks. In Ganesh Santa Ram Sirur v. State Bank of India, (2005) 1 SCC 13, the Hon'ble Supreme Court was pleased to observe as follows: -
"34. The bank manager/officer and employees of any bank, nationalised/or non-nationalised, are expected to act and discharge their functions in accordance with the rules and regulations of the bank. Acting beyond one's authority is by itself a breach of discipline and trust and a misconduct. In the instant case Charge 5 framed against the appellant is very serious and grave Page 8 of 28 in nature. We have already extracted the relevant Rule which prohibits the bank manager to sanction a loan to his wife or his relative or to any partner. While sanctioning the loan the appellant did not appear to have kept this aspect in mind and acted illegally and sanctioned the loan. He realised the mistake later and tried to salvage the same by not encashing the draft issued in the maiden name of his wife though the draft was issued but not encashed. The decision to sanction a loan is not an honest decision. Rule 34(3)(1) is a rule of integrity and, therefore, as rightly pointed out by Mr Salve, the respondent Bank cannot afford to have the appellant as bank manager. The punishment of removal awarded by the appellate authority is just and proper in the facts and circumstances of the case. Before concluding, we may usefully rely on the judgment Regional Manager, U.P. SRTC v. Hoti Lal [(2003) 3 SCC 605 : 2003 SCC (L&S) 363] wherein this Court has held as under: (SCC p. 614, para 10) "If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of the learned Single Judge upholding the order of dismissal." [emphasis suppllied]
14. That the phrase "public authorities", as defined under Section 2(h) of the RTI Act, includes any:
"(i) body owned, controlled or substantially financed"
(ii) non-Government organisation substantially financed". directly or indirectly by funds provided by the appropriate Government" It is submitted Page 9 of 28 that government money is also public money, and hence, there is no distinction between financed by government or by the public.
15. The Hon'ble Supreme Court has held in D.A.V. College Trust & Management Society v. Director of Public Instructions, (2019) 9 SCC 185 that Section 2(h) is to be interpreted in accordance with objective of transparency / RTI Act. The relevant paragraphs of the said judgment are quoted herein-below for instant reference: -
"15. If we analyse Section 2(h) carefully it is obvious that the first part of Section 2(h) relates to authorities, bodies or institutions of self government established or constituted (a) under the Constitution; (b) by any law of Parliament; (c) by any law of State Legislature or (d) by notification made by the appropriate Government. There is no dispute with regard to clauses (a) to (c). As far as clause (d) is concerned it was contended on behalf of the appellants that unless a notification is issued notifying that an authority, body or institution of self-government is brought within the ambit of the Act, the said Act would not apply. We are not impressed with this argument. The notification contemplated in clause (d) is a notification relating to the establishment or constitution of the body and has nothing to do with the Act. Any authority or body or institution of self government, if established or constituted by a notification of the Central Government or a State Government, would be a public authority within the meaning of clause (d) of Section 2(h) of the Act.
16. We must note that after the end of sub-clause (d) there is a comma and a big gap and then the definition goes on to say "and includes any" and thereafter the definition reads as: "(i) body owned, controlled or substantially financed; (ii) non-government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;" The words "and includes any", in our considered view, expand the definition as compared to the first part. The second part of the definition is an inclusive clause which indicates the intention of the Page 10 of 28 legislature to cover bodies other than those mentioned in clauses (a) to (d) of Section 2(h).
17. We have no doubt in our mind that the bodies and NGOs mentioned in sub-clauses (i) and (ii) in the second part of the definition are in addition to the four categories mentioned in clauses (a) to (d). Clauses (a) to (d) cover only those bodies, etc., which have been established or constituted in the four manners prescribed therein. By adding an inclusive clause in the definition, Parliament intended to add two more categories, the first being in sub-clause
(i), which relates to bodies which are owned, controlled or substantially financed by the appropriate Government. These can be bodies which may not have been constituted by or under the Constitution, by an Act of Parliament or State Legislature or by a notification. Any body which is owned, controlled or substantially financed by the Government, would be a public authority.
18. As far as sub-clause (ii) is concerned it deals with NGOs substantially financed by the appropriate Government. Obviously, such an NGO cannot be owned or controlled by the Government. Therefore, it is only the question of financing which is relevant.
19. Even in Thalappalam case [Thalappalam Service Coop. Bank Ltd. v. State of Kerala, (2013) 16 SCC 82] in para 32 of the judgment, this Court held that in addition to the four categories there would be two more categories, (5) and (6).
20. The principle of purposive construction of a statute is a well recognised principle which has been incorporated in our jurisprudence. While giving a purposive interpretation, a court is required to place itself in the chair of the legislature or author of the statute. The provision should be construed in such a manner as to ensure that the object of the Act is fulfilled. Obviously, if the language of the Act is clear then the language has to be followed, and the court cannot give its own interpretation. However, if the language admits of Page 11 of 28 two meanings then the court can refer to the Objects and Reasons, and find out the true meaning of the provisions as intended by the authors of the enactment. S.B. Sinha, J. in New India Assurance Co. Ltd. v. Nusli Neville Wadia [New India Assurance Co. Ltd. v. Nusli Neville Wadia, (2008) 3 SCC 279 : (2008) 1 SCC (Civ) 850] held as follows: (SCC pp. 296-97, para 51) "51. ... to interpret a statute in a reasonable manner, the Court must place itself in the chair of a reasonable legislator/author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfil its constitutional obligations as held by the Court inter alia in Ashoka Mktg. Ltd.
[Ashoka Mktg. Ltd. v. Punjab National Bank, (1990) 4 SCC 406] "
Sinha, J. quoted with approval the following passage from Barak's treatise on Purposive Interpretation in Law [New India Assurance Co. Ltd. v. Nusli Neville Wadia, (2008) 3 SCC 279 : (2008) 1 SCC (Civ) 850, Aharon Barak, Purposive Interpretation in Law, (2007) at p. 87.] , which reads as follows: (New India Assurance Co. Ltd. case [New India Assurance Co. Ltd. v. Nusli Neville Wadia, (2008) 3 SCC 279 :
(2008) 1 SCC (Civ) 850] , SCC p. 297, para 52) "52. ... 'Hart and Sachs also appear to treat "purpose" as a subjective concept. I say "appear" because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislator's shoes, they introduce two elements of objectivity: First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non-rebuttable presumption that members of the legislative body sought to fulfil their constitutional duties in good faith. This formulation allows the Page 12 of 28 interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably.' "
22. Therefore, in our view, Section 2(h) deals with six different categories and the two additional categories are mentioned in sub- clauses (i) and (ii). Any other interpretation would make sub-clauses
(i) and (ii) totally redundant because then an NGO could never be covered. By specifically bringing NGOs it is obvious that the intention of Parliament was to include these two categories mentioned in sub- clauses (i) and (ii) in addition to the four categories mentioned in clauses (a) to (d). Therefore, we have no hesitation in holding that an NGO substantially financed, directly or indirectly, by funds provided by the appropriate Government would be a public authority amenable to the provisions of the Act.
23. NGO is not defined under the Act or any other statute as far as we are concerned. In fact, the term NGO appears to have been used for the first time describing an international body which is legally constituted but non-governmental in nature. It is created by natural or legal entities with no participation or representation by the Government. Even NGOs which are funded totally or partially by the Governments essentially maintain the NGO status by excluding Government representations in all their organisations. In some jurisprudence, they are also referred to as civil society organisations.
24. A society which may not be owned or controlled by the Government, may be an NGO but if it is substantially financed directly or indirectly by the Government it would fall within the ambit of sub- clause (ii).
Page 13 of 2828. Another aspect for determining substantial finance is whether the body, authority or NGO can carry on its activities effectively without getting finance from the Government. If its functioning is dependent on the finances of the Government then there can be no manner of doubt that it has to be termed as substantially financed.
29. While interpreting the provisions of the Act and while deciding what is substantial finance one has to keep in mind the provisions of the Act. This Act was enacted with the purpose of bringing transparency in public dealings and probity in public life. If NGOs or other bodies get substantial finance from the Government, we find no reason why any citizen cannot ask for information to find out whether his/her money which has been given to an NGO or any other body is being used for the requisite purpose or not."
16. That the essence of "substantial financing by appropriate government" under Section 2(h) of the RTI Act is that the government should substantially finance a body for it to be called a "public authority". It is needless to emphasize that government financing is done by public money i.e., government putting public money in a body. Thus, a body which runs substantially on public money comes within the definition of "public authority"
of RTI Act in view of the fact that the money of public is involved and any body which uses public money should run transparently.
17. Thus, it is submitted that when the public itself is putting substantial sum of its hard-earned money in private sector banks, the object of RTI Act commands that public has a right to know how its money is being used and public has a legitimate expectation that such banks function transparently. This can only be achieved when private sector banks also come within the ambit of RTI Act, and for it to be done private sector banks ought to be declared as "public authorities" under Section 2(h) of the RTI Act.
18. It is submitted that vide a detailed judgment, dated 03.06.2013, passed by a 3-member bench of the Hon'ble CIC, New Delhi in File No. CIC/SM/C/2011/001386 and Page 14 of 28 File No. CIC/SM/C/2011/000838, it has been held that political parties are substantially financed by the Central Government under Section 2(h)(ii) of the RTI Act, and therefore, come within the ambit of "Public authorities". The said judgment noted that: "Political Parties affect the lives of citizens, directly or indirectly, in every conceivable way and are continuously engaged in performing public duty. It is, therefore, important that they became accountable to the public." The said judgment still holds the field as it was not challenged by any political party, although it has not been implemented by any of the political parties.
19. That under Deposit Insurance and Credit Guarantee Corporation] Act, 1961, banks in general have direct government-funding through "Safety Net for Bank Deposits, where Deposit Insurance and Credit Guarantee Corporation insures public deposits up to rupees five lakhs each with each bank, including private banks, are to be given to depositors in case of failure of a bank. Thus, it is submitted that if a bank, including private sector banks, goes bankrupt, ultimately it is the central government which protects the bank.
20. That after the fall of Global Trust Bank (Private Sector Bank), in order to save the depositors' money, the Government of India sanctioned a scheme for amalgamation of the Global Trust Bank Ltd. with the Oriental Bank of Commerce (a successfully running Public Sector Bank) in the year 2004 as per which the customers, including depositors of the Global Trust Bank Ltd., were to be able to operate their accounts as customers of Oriental Bank of Commerce with effect from 14.08.2004
21. Therefore, the applicant respectfully submits that City Union Bank (and all private sector banks) be declared as a public authority under the RTI Act 2005."
Respondent's written submissions:
"As alleged in our earlier submission dt.21.05.2024, We submit a brief history of the backdrop of this complaint as stated below:Page 15 of 28
One M/s Abhinav & Adhitya a Proprietorship concern @ 1775, Gali Lattu Shah, Dariba Kalan, Delhi - 110 006 owned by one Mr. Sanjeev Kumar Agrawal, S/o Om Prakash Agrawal availed various credit facilities to the tune of Rs.675.15 lakhs on various dates. ·The said Mr. Sanjeev Kumar Agrawal who is none other than the brother of this complainant/ appellant Mr. Subash Chandra Agrawal.
They were defaulted in repayment of the loan in time and the repayment was irregular and their accounts were classified as NPA on 25.12.2020. Though it was classified as NPA in the year of 2020, the bank initiated SARFAESI Proceedings well after the vacation of interim relief granted earlier by Supreme Court on 23/03/2021 we sent Demand Notice u/s 13 (2) of SARFEASI ACT on dt.15.04.2021 only.
On receipt of the notice by the borrowers, this appellant who is neither a customer nor a borrower/mortgagor in the said loan, instead of making representation to the bank under the provisions of the said act, made false complaints against the Bank on various government agencies through online platform on 03.05.2021. (CPGRAMS COMPLAINT DEABD/E/2021/29415/29417/29437 -SUBASH CHANDRA AGRAWAL) On receipt of the copy of those complaints the bank vide its letter dt. 10.05.2021 sent our reply to the COMPLAINANT AND THE SAID PEITIONS WERE CLOSED BY THE AGENCIES.
AGGREIVED ON the above, instead of resolving the real issue, he has come out with this petition to harass and deviate the bank from proceeding further , this appellant claimed to be a RTI CONSULTANT FILED a petition u/s 18 of RTI ACT on 11.3.22 which was duly replied on 31.3.2022. Now aggreived on the above reply with an ulterior motive, he has filed this appeal before CIC ON 07.04.2022. Finally by making use of this application as a tool to negotiate the terms of settlement, after several reactions, at last he purchased the property mortgaged in the above account by way of Private Sale. Since he has not come out with clean hands and with an ulterior motive and concealed the above facts. Hence, his appeal should not be entertained further.
Further, in his rejoinder submission made on 25.5.2024, he has quoted the other case viz Subash Chandra Agarwal Vs Indian National Congress and Five others, Page 16 of 28 (CIC/SM/C/2011/001386) AND another case. The allegation stated in the said petition is under wrong presumption made by him for which there is no evidentiary proof submitted by him, None of the ingredients quoted by him against Political Parties as public authority in the above case is applicable to private sector Banks.
The petitioner has raised such baseless allegation for the reasons best known to him. The details called for are not of public interest in nature and the same are dealt under the provision of SARFAESI ACT 2002 for which provide for a systematic methodology of redressal of any grievances associated with it. The petitioner has approached the CIC presumably without any locus standi on the matter.
Apart from our written submission submitted above during the last hearing held on 28.05.2024 through video conference , as directed by the Hon'ble commission, we submit the following few lines for your valuable consideration against the question whether a Private sector Bank will fall within the definition of "public authority" under Section 2(h) of the Right to Information Act, 2005 (for short "the RTI Act") and be bound by the obligations to provide information sought for by a citizen under the RTI Act.
In this regard we highly relied on the verdict given by the Division Bench of the Apex Court in the case of Thalappalam Service Cooperative Bank Limited & others Vs State of Kerala and others. {(2013) 16 sec 82} The facts of the above case is squarely applicable to this case also.
As the name reflects Private Sector Banks are those owned and managed by Private Companies or individuals and though they are privately owned, they have to follow the rules set by the Central Bank.
However, just like the cooperative societies these banks are not owned, controlled or substantially financed, directly or indirectly, by the State Government and they are not statutory bodies and are not performing any public functions and will not come within the expression "state" within the meaning under Article 12 of the Constitution of India.
Further, there is a clear distinction between a body which is created by a Statute and a body which, after having· come into existence, is governed in accordance with the Page 17 of 28 provisions of a Statute. Private Sector Banks which we are concerned, fall under the later category.
Further, merely because Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability or sound economic growth having due regard to the interests of the depositors etc. as provided under Section S(c)(a) of the Banking Regulation Act does not mean that the private companies carrying on the business or commercial activity of banking, discharge any public function or public duty.
The RTI Act is an Act enacted to provide for citizens to secure, access to information under the control of public authorities and to promote transparency and accountability in the working of every public authority.
The expression "public authority" is defined under Section 2(h) of the RTI Act, which reads as follows:"
(2) Definitions._ In this Act, unless the context otherwise requires : (h) "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 Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes any-
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government" .Page 18 of 28
Legislature, in its wisdom, while defining the expression "public authority" under Section 2(h), intended to embrace only those categories, which are specifically included, unless the context of the Act otherwise requires.
Section 2(h) has used the expressions 'means' and includes'. When a word is defined to 'mean' something, the definition is prima facie restrictive and where the word is defined to 'include' some other thing, the definition is prima facie extensive. But when both the expressions "means" and "includes" are used, the categories mentioned there would exhaust themselves.
The former part of 2(h) deals with:
(1) an authority or body or institution of self-government established by or under the Constitution, (2) an authority or body or institution of self-government established or constituted by any other law made by the Parliament, (3) an authority or body or institution of self-government established or constituted by any other law made by the State legislature, and (4) an authority or body or institution of self-government established or constituted by notification issued or order made by the appropriate government.
The Private Sector Banks, with which we are concerned, admittedly, do not fall in the above mentioned categories, because none of them is either a body or institution of self-government, established or constituted under the Constitution, by law made by the Parliament, by law made by the State Legislature or by way of a notification issued or made by the appropriate government.
On the other hand, whether they fall in the later part of Section 2(h) of the Act, which embraces within its fold: (5) a body owned, controlled or substantially financed, directly or indirectly by funds provided by the appropriate government, (6) non- governmental organizations substantially financed directly or indirectly by funds provided by the appropriate government.
Page 19 of 28The expression 'Appropriate Government' has also been defined under Section 2(a) of the RTI Act, which reads as follows :
"2(a). "appropriate Government" means in relation to a public authority which is established, constituted, owned, controlled or substantially financed by funds provided directly or indirectly- (i) by the Central Government or the Union territory administration, the Central Government; (ii) by the State Government, the State Government."
The RTI Act, therefore, deals with bodies which are owned, controlled or substantially financed, directly or indirectly, by funds provided by the appropriate government and also non-government organizations substantially financed, directly or indirectly, by funds provided by the appropriate government, in the event of which they may fall within the definition of Section 2(h)(d)(i) or (ii) respectively.
As already pointed out, a body, institution or an organization, which is neither a State within the meaning of Article 12 of the Constitution or instrumentalities, may still answer the definition of public authority under Section 2(h)d (i) or (ii).
(a) Body owned by the appropriate government -A body owned by the appropriate government clearly falls under Section 2(h)(d)(i) of the Act. A body owned, means to have a good legal title to it having the ultimate control over the affairs of that body, ownership takes in its fold control, finance etc. Admittedly, the private sector banks in question are not owned by the appropriate government.
(b) Body Controlled by the Appropriate Government :
A body which is controlled by the appropriate government can fall under the definition of public authority under Section 2h(d)(i).
Further, the Apex Court is of the opinion that when we test the meaning of expression "controlled" which figures in between the words "body owned" and "substantially financed", the control by the appropriate government must be a control of a substantial nature. The mere 'supervision' or 'regulation' as such by a statute or Page 20 of 28 otherwise of a body would not make that body a "public authority" within the meaning of Section 2(h)(d)(i) of the RTI Act.
In other words just like a body owned or body substantially financed by the appropriate government, the control of the body by the appropriate government would also be substantial and not merely supervisory or regulatory.
We are, therefore, of the view that the word "controlled" used in Section 2(h)(d)(i) of the Act has to be understood in the context in which it has been used vis-a-vis a body owned or substantially financed by the appropriate government, that is the control of the body is of such a degree which amounts to substantial control over the management and affairs of the body.
SUBSTANTIALLY FINANCED The words "substantially financed" have been used in Sections 2(h)(d)(i) & (ii), while defining the expression public authority as well as in Section 2(a) of the Act, while defining the expression "appropriate Government".
A body can be substantially financed, directly or indirectly by funds provided by the appropriate Government. The expression "substantially financed", as such, has not been defined under the Act. "Substantial" means "in a substantial manner so as to be substantial".
The burden to show that a body is owned, controlled or substantially financed or that a non-government organization is substantially financed directly or indirectly by the funds provided by the appropriate Government is on the applicant who seeks information or the appropriate Government and can be examined by the State Information Commission or the Central Information Commission as the case may be, when the question comes up for consideration.
No materials have been made available to show that the Private Sector Banks with which we are concerned, in the context of the Act, would fall within the definition of Section 2(h) of the Act.Page 21 of 28
First of all, the scope and ambit of the expression "public authority" has been restricted by a statutory definition under Section 2(h) limiting it to the categories mentioned therein which exhaust itself, unless the context otherwise requires. Citizens, as already indicated by us, have a right to get information, but can have access only to the information "held" and under the "control of public authorities", Further, Section 8 begins with a non obstante clause, which gives that Section an overriding effect, in case of conflict, over the other provisions of the Act. Even if, there is any indication to the contrary, still there is no obligation on the public authority to give information to any citizen of what has been mentioned in clauses (a) to (j). Public authority, as already indicated, cannot access all the information from a private individual, but only those information which he is legally obliged to pass on to a public authority by law, and also only those information to which the public authority can have access in accordance with law. Even those information, if personal in nature, can be made available only subject to the limitations provided in Section 8(j) of the RTI Act.
Reference made to a recent judgment of the Apex Court in Girish Ramchandra Deshpande v. Central Information Commissioner and others (2013) 1 SCC 212, wherein the Hon'ble Court held that since there is no bona fide public interest in seeking information, the disclosure of said information would cause unwarranted invasion of privacy of the individual under Section 8(1)(j) of the Act. Further, if the authority finds that information sought for can be made available in the larger public interest, then the officer should record his reasons in writing before providing the information, because the person from whom information is sought for, has also a right to privacy guaranteed under Article 21 of the Constitution.
We the Private Sector Banks, are not public authorities and, hence, not legally obliged to furnish any information sought for by a citizen under the RTI Act will not fall within the definition of "public authority" as defined under Section 2(h) of the RTI Act.
Further, the details called for about the Authorised Officers are exempted under various provisions of 8 (1) (d), (e), (j) of RTI act.Page 22 of 28
a) The information sought are highly sensitive and likely to be exploited by the complainant , if revealed.
b) Physical Security of the persons will be jeopardized, apart from the risk of other abuses, if the details are furnished.
c) The appointment of authorized officer is decided based on the sec 2(a) SARFAESI Act which is not static and only based on the various other factors. Further, the disclosure of the personal details of AOs amounts to violation of personal liberty and infringement of right to privacy assured under constitution. The same were also protected under exemptions stated supra. A Nine Judge Constitution Bench of the Supreme Court in the case of K.S.Puttaswamy and Another has explicitly and categorically recognised the right to privacy as a fundamental right.
Though in the case of Reserve Bank of India Vs Jayantilal N Mistry{(2016)3 sec 525 which held that the RBI was duty bound to furnish all information relating to inspection reports and other materials. The action of RBI based on the judgment in Jayantilal N. Mistry (supra) is under challenge before the Hon'ble Apex Court by various banks including private banks.
It is further evident from the order passed by the Supreme Court in the case viz Writ Petition (Civil) No.1159 of 2019 - HDFC BANK LTD. & ors Vs Union of India & ors. The court emphatically observed that Jayantilal N. Mistry (supra) did not take into consideration the aspect of balancing the right to information and right to privacy etc. and rightly rejected the preliminary objection by way of IA filed by the applicant - Girish Mittal with a prayer seeking dismissal of the WP FILED under Article 32 of the Constitution of India.
Further, it is pertinent to note that "Writ Petitions" against the Private Banks are not entertained by the Higher Courts. It is evident from the case of "FEDERAL BANK Vs SAGAR THOMAS & ORS {(2003)10 sec 733}, it is stated that private companies including private Bank, not amenable to Writ Jurisdiction under Article 12 of the Constitution."
Page 23 of 287. The Commission after adverting to the facts and circumstances of the case, and perusal of records, observes that the arguments tendered by the Complainant do not establish or fulfill the requirements laid down by the Hon'ble Supreme Court in the matter of Thalappalam Ser. Coop. Bank Ltd. And other Vs State of Kerala and Ors, [CIVIL APPEAL NO. 9017 OF 2013] dated 07.10.2013 to determine whether an entity is a "public authority" as per Section 2(h) of the RTI Act. The Complainant has primarily relied on the argument that since the Bank is performing public functions much like political parties and that funding of the bank is through the deposits made by the public at large, the aspect of substantial funding by the Govt. be read into the matter. Here, it is relevant to refer to the following observations of the Apex Court in the Thalappalam matter:
"6. The words "substantially financed" have been used in Sections 2(h)(d)(i) & (ii), while defining the expression public authority as well as in Section 2(a) of the Act, while defining the expression "appropriate Government". A body can be substantially financed, directly or indirectly by funds provided by the appropriate Government. The expression "substantially financed", as such, has not been defined under the Act. "Substantial"
means "in a substantial manner so as to be substantial". In Palser v. Grimling (1948) 1 All ER 1, 11 (HL), while interpreting the provisions of Section 10(1) of the Rent and Mortgage Interest Restrictions Act, 1923, the House of Lords held that "substantial" is not the same as "not unsubstantial" i.e. just enough to avoid the de minimis principle. The word "substantial" literally means solid, massive etc. Legislature has used the expression "substantially financed" in Sections 2(h)(d)(i) and
(ii) indicating that the degree of financing must be actual, existing, positive and real to a substantial extent, not moderate, ordinary, tolerable etc.
37. We often use the expressions "questions of law" and "substantial questions of law" and explain that any question of law affecting the right of parties would not by itself be a substantial question of law. In Black's Law Dictionary (6th Edn.), the word 'substantial' is defined as 'of real worth and importance; of considerable value; valuable. Belonging to substance; actually existing; real: not seeming or imaginary; not illusive; solid; true; veritable. Something worthwhile as distinguished from something without Page 24 of 28 value or merely nominal. Synonymous with material.' The word 'substantially' has been defined to mean 'essentially; without material qualification; in the main; in substance; materially.' In the Shorter Oxford English Dictionary (5th Edn.), the word 'substantial' means 'of ample or considerable amount of size; sizeable, fairly large; having solid worth or value, of real significance; sold; weighty; important, worthwhile; of an act, measure etc. having force or effect, effective, thorough.' The word 'substantially' has been defined to mean 'in substance; as a substantial thing or being; essentially, intrinsically.' Therefore the word 'substantial' is not synonymous with 'dominant' or 'majority'. It is closer to 'material' or 'important' or 'of considerable value.' 'Substantially' is closer to 'essentially'. Both words can signify varying degrees depending on the context.
38. Merely providing subsidiaries, grants, exemptions, privileges etc., as such, cannot be said to be providing funding to a substantial extent, unless the record shows that the funding was so substantial to the body which practically runs by such funding and but for such funding, it would struggle to exist. The State may also float many schemes generally for the betterment and welfare of the cooperative sector like deposit guarantee scheme, scheme of assistance from NABARD etc., but those facilities or assistance cannot be termed as "substantially financed" by the State Government to bring the body within the fold of "public authority" under Section 2(h)(d)(i) of the Act. But, there are instances, where private educational institutions getting ninety five per cent grant-in-aid from the appropriate government, may answer the definition of public authority under Section 2(h)(d)(i)."
Further, considering the rhetoric interpretation which is being urged to be accorded by the Complainant to the elements of Section 2(h) of the RTI Act with reference to the Respondent bank, the following observations of the Court in the averred judgment finds square applicability in the instant matter:
"42. Legislative intention is clear and is discernible from Section 2(h) that intends to include various categories, discussed earlier. It is trite law that the primarily language employed is the determinative factor of the legislative intention and the intention of the legislature must be found in the words used by the legislature itself. In Magor and St. Page 25 of 28 Mellons Rural District Council v. New Port Corporation (1951) 2 All ER 839(HL) stated that the courts are warned that they are not entitled to usurp the legislative function under the guise of interpretation. This Court in D.A. Venkatachalam and others v. Dy. Transport Commissioner and others (1977) 2 SCC 273, Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and others (2001) 4 SCC 139, District Mining Officer and others v. Tata Iron & Steel Co. and another (2001) 7 SCC 358, Padma Sundara Rao (Dead) and others v. State of Tamil Nadu and others (2002) 3 SCC 533, Maulvi Hussain Haji Abraham Umarji v. State of Gujarat and another (2004) 6 SCC 672 held that the court must avoid the danger of an apriori determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provisions to be interpreted is somehow fitted. It is trite law that words of a statute are clear, plain and unambiguous i.e. they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of the consequences, meaning thereby when the language is clear and unambiguous and admits of only one meaning, no question of construction of a statute arises, for the statute speaks for itself. This Court in Kanai Lal Sur v. Paramnidhi Sadhukhan AIR 1957 SC 907 held that "if the words used are capable of one construction only then it would not be open to courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act."
43. We are of the view that the High Court has given a complete go-bye to the above- mentioned statutory principles and gone at a tangent by mis- interpreting the meaning and content of Section 2(h) of the RTI Act. Court has given a liberal construction to expression "public authority" under Section 2(h) of the Act, bearing in mind the "transformation of law" and its "ultimate object" i.e. to achieve "transparency and accountability", which according to the court could alone advance the objective of the Act. Further, the High Court has also opined that RTI Act will certainly help as a protection against the mismanagement of the society by the managing committee and the society's liabilities and that vigilant members of the public body by obtaining information through the RTI Act, will be able to detect and prevent mismanagement in time. In our view, the categories mentioned in Section 2(h) of the Act exhaust themselves, hence, there is no question of Page 26 of 28 adopting a liberal construction to the expression "public authority" to bring in other categories into its fold, which do not satisfy the tests we have laid down. Court cannot, when language is clear and unambiguous, adopt such a construction which, according to the Court, would only advance the objective of the Act. We are also aware of the opening part of the definition clause which states "unless the context otherwise requires". No materials have been made available to show that the cooperative societies, with which we are concerned, in the context of the Act, would fall within the definition of Section 2(h) of the Act."
8. In view of the foregoing discussion, the Commission observes that in the instant case, the City Union Bank Limited, Kumbakonam cannot be a deemed as a public authority as per Section 2(h) of the RTI Act.
9. The Complaint is disposed of accordingly.
Copy of the decision be provided free of cost to the parties.
(Anandi Ramalingam) (आनंिी रामललंगम) Information Commissioner (सूचना आयुक्त) दिनांक/Date: 10.06.2024 Authenticated true copy Col S S Chhikara (Retd) कनगल एस एस निकारा, (ररटायर्ग) Dy. Registrar (उप पंजीयक) 011-26180514 Addresses of the parties:
1. The CPIO City Union Bank Limited, AGM & CPIO, Administrative Office, 24-B, Gandhi Nagar, Kumbakonam - 612001 Page 27 of 28
2. Subhash Chandra Agrawal Page 28 of 28 Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
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