Central Information Commission
Mr.Subir Roy vs Ministry Of Water Resources on 16 December, 2011
Appeal No.CIC/SS/A/2011/001240
CENTRAL INFORMATION COMMISSION
B- Wing, 2nd Floor,
August Kranti Bhavan, Bhikaji Cama Place,
New Delhi - 110066
Appeal No.CIC/SS/A/2011/001240
PARTIES TO THE CASE:
Appellant : Shri Subir Roy (through Shri Sanjoy Bhattacharjee)
Respondent : National Projects Construction Corporation Ltd. (through
Shri P.K. Narula, JGM (P & A) & CPIO; Shri Budh
Ram, DGM (Law) and Shri K.K. Gupta, GM (HR) &
FAA)
Date of Hearing : 23/11/2011
ORDER
1. The present appeal emanates from the Appellant's RTI Application dated 06/09/2010, the contents of which have not been reproduced here for the sake of brevity. A copy of the said RTI Application is attached to this Order (marked as Annexure - A) for the ready reference of this Commission.
2. The CPIO in his reply dated 26/10/2010had informed the Appellant that the subject-matter of the said RTI Application pertains to a disputed matter and the said matter is being resolved by way of arbitration between M/s. SA Engg. And NPCC. The CPIO has further stated in his reply that the same information when sought by M/s. SA Engg., which is one of the parties to 1 Appeal No.CIC/SS/A/2011/001240 the arbitration proceedings, was denied to the said company by the sole Arbitrator. Therefore, according to the CPIO, in order to circumvent the decision of the sole Arbitrator, the Appellant has moved an application under the RTI Act. To put it simply, the CPIO is of the opinion that what the Appellant could not get directly, he is trying to get indirectly.
3. It is also the view of the CPIO that the Arbitration & Conciliation Act, 1996 ("ABC Act") provides for supply and inspection of documents pertaining to arbitral proceedings and the parties are bound by the conclusive orders passed in this regard by the arbitrator.
4. The FAA in his Order dated 21/01/2011 while upholding the CPIO's decision has further relied upon the decision of this Commission in Appeal No.CIC/WB/A/2007/01650 dated 12/06/2009 in order to deny the disclosure of information.
5. The core issue before the Commission is whether Appellant is entitled under the RTI Act to get such information which forms subject-matter of pending / ongoing arbitral proceedings given the fact, that the learned Arbitrator has refused to provide such information to the Appellant under the ABC Act. The answer to the said issue lies in the negative for the reasons discussed in the following paragraphs.
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6. The attention of the Commission is drawn to Section 22 of the RTI Act which reads as follows:
"22. Act to have overriding effect - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
Therefore, as per the abovesaid Section, anything in the ABC Act which is inconsistent with the RTI Act will be overridden by the provisions of the RTI Act. Hence, it is apposite to first understand the schema of the ABC Act before proceeding to address the core issue formulated already.
7. Arbitration is an alternate dispute settlement mechanism often agreed upon by commercial entities to settle their private disputes without the interference of the Courts and in the most efficient and time-saving manner. The parties may either enter into an arbitration agreement as per their mutually agreed terms & conditions for settlement of their private disputes or may be referred to arbitration under the Order passed by a Court of law under Section 89 of Civil Procedure Code. The simple principle which remains behind arbitration is that instead of hard fought litigation, the parties 3 Appeal No.CIC/SS/A/2011/001240 may be allowed by law to settle their disputes as per their own terms & conditions with the least friction and in the most efficient manner possible.
8. Having said so, the Commission also understands that the ABC Act is a special and unique legislation which has been enacted for the purpose of consolidating the laws relating to such arbitration and conciliation proceedings, as discussed already. The procedure for dealing with the subject-matter which concerns the case pending adjudication before an Arbitral Tribunal is therefore to be governed by the provisions of the ABC Act. Section 19 of the ABC Act pertains to determination of rules of procedure and reads as follows:
"19. Determination of rules of procedure - (1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872(1 of 1872).
(2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings.
(3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate.
(4) The power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence."4
Appeal No.CIC/SS/A/2011/001240
9. The Arbitral Tribunal while trying a case, is therefore, not only unaffected by the CPC or Evidence Act but also has the power to conclusively determine the procedure for conducting the arbitration. As per Section 19 (2) & (3) of the ABC Act, if the parties have not agreed upon the procedure to be followed by the arbitral tribunal in conducting its proceedings, then the arbitral Tribunal shall have the power to conduct the proceedings in the manner it considers appropriate.
10. In the present case, it is not the case of either of the parties that in fact they had mutually agreed to make the details of their arbitration proceedings public. Nor is the case of the Appellant that the parties to the Arbitration proceedings had agreed that as part of the procedure, any information pertaining to the subject-matter of the arbitration proceedings will be disclosed to either of the parties at their instance.
11.In such circumstances, the Commission must presume that the sole arbitrator in the present case had the power to conduct the arbitration proceedings as he considered appropriate. Therefore, in exercise of such power, he decided not to provide certain information pertaining to the subject-matter of the ongoing arbitration proceedings to M/s SA Engg.
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12. Such an action taken by the learned Arbitrator cannot be termed as "inconsistent" with the RTI Act. The power exercised under Section 19 of the ABC Act is not strictly with reference to disclosure of information. The power of the arbitral tribunal by and large relates to conducting the proceedings pending before it. If while conducting such proceeding, given the peculiar facts & circumstances of the case before him, the sole arbitrator is of the view that certain information in the form of documents / records etc need not be provided to one of the parties to arbitration, then such decision is within the sole competence of the learned Arbitrator. Merely because it pertains to disclosure of information does not mean that it is inconsistent with the RTI Act. The sole arbitrator could have possibly taken any decision in respect of any issue and the fact that such issue pertains to disclosure of information is merely incidental.
13. In the Commission's opinion, there is nothing in the ABC Act with respect to arbitration proceedings which can be termed as inconsistent with the provisions of the RTI Act. The object of the RTI Act is to promote transparency & accountability in the working of every public authority. However, it does not mean that the RTI Act will unwarrantedly pervade through even when there is a legally valid and binding decision taken by an adjudicating authority appointed under another law in force. 6
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14. Therefore, in the present case, it needs to be appreciated that an arbitral tribunal consisting of sole arbitrator has taken a decision which is in accordance with the provisions of the ABC Act, is unchallenged and which also carries the force of law. Such decision is binding on the parties under the ABC Act. Clearly, the power to take such decision is not inconsistent with the RTI Act. Merely because this decision incidentally relates to disclosure of information does not mean that the RTI Act will pervade through the statutory powers vested in the arbitrator to take such decision and override the same automatically.
15. With the above observations, the Appeal is accordingly dismissed.
(Sushma Singh) Information Commissioner 16.12.2011 Authenticated True Copy (DC Singh) Deputy Registrar Name & Address of Parties:
Sh. Subir Roy, 107/108/4, Bidhan Nagar Road, Block5, 7 Appeal No.CIC/SS/A/2011/001240 Flat No. 18, P.O. - Ultadanga, P.S. Maniktala, Kolkata - 700 067, West Bengal The CPIO, National Projects Construction Corporation Limited, Plot No. 6768, Sector25, Faridabad, Haryana The First Appellate Authority, National Projects Construction Corporation Limited, Plot No. 6768, Sector25, Faridabad, Haryana 8