Central Information Commission
Himanshu Gandhi vs Nuclear Power Corporation Of India on 13 February, 2023
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली,
ली New Delhi - 110067
ि तीय अपील सं या / Second Appeal No. CIC/NPCOI/A/2021/660929
CIC/NPCOI/C/2021/661223
CIC/NPCOI/A/2021/660974
CIC/NPCOI/C/2021/661224
CIC/NPCOI/A/2021/661178
CIC/NPCOI/C/2021/661231
CIC/NPCOI/A/2021/661189
CIC/NPCOI/C/2021/661233
CIC/NPCOI/A/2021/661193
CIC/NPCOI/C/2021/661235
CIC/NPCOI/C/2021/661226
Shri Himanshu Gandhi ... अपीलकता /Appellant
VERSUS/बनाम
PIO ... ितवादीगण /Respondent
NPCIL
Date of Hearing : 06.02.2023
Date of Decision : 13.02.2023
Chief Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
Since both the parties are same and the matters relate to similar issues,
the above mentioned cases are clubbed together for hearing and disposal.
RTI Filed CPIO reply First appeal FAO 2nd Appeal
Case on received on
No.
660929 20.08.2021 27.09.2021& 01.10.2021 - 16.12.2021
05.10.2021
661223 20.08.2021 27.09.2021 01.10.2021 - 18.12.2021
&
05.10.2021
660974 20.08.2021 27.09.2021 01.10.2021 - 17.12.2021
661224 20.08.2021 27.09.2021 01.10.2021 - 18.12.2021
661178 13.10.2020 07.12.2020 27.11.2021 - 18.12.2021
&
11.11.2020
661231 13.10.2020 11.11.2020 27.11.2021 - 18.12.2021
661189 12.01.2021 26.02.2021 26.02.2021 - 18.12.2021
Page 1 of 21
&
10.02.2021
661233 12.01.2021 26.02.2021 26.02.2021 - 18.12.2021
661193 23.01.2021 22.02.2021 01.03.2021 - 18.12.2021
&
26.02.2021
661235 23.01.2021 22.02.2021 01.03.2021 - 18.12.2021
&
26.02.2021
661226 04.10.2021 03.11.2021 27.11.2021 - 18.12.2021
&15.11.2021
Information soughtand background of the case:
(1) CIC/NPCOI/A/2021/660929 (2) CIC/NPCOI/C/2021/661223 The Applicant filed an RTI application dated 20.08.2021 seeking information on 09 points, some of which are as under:-Page 2 of 21
Etc. The CPIO, Nuclear Power Corporation of India Limited vide letter dated 27.09.2021 replied as under:-Page 3 of 21
The CPIO, NPCIL vide another letter dated 05.10.2021 replied as under:-Page 4 of 21
Dissatisfied with the response received from the CPIO, a First Appeal dated 01.10.2021 was filed, which was not adjudicated by the FAA.
Aggrieved and dissatisfied, the Applicant approached the Commission with the instant Second Appeal and Complaint.
A written submission dated 02.02.2023 has been received from PIO, NPCIL which reveals that the First Appeal was duly adjudicated vide order dated 19.01.2023 as under:
(3) CIC/NPCOI/A/2021/660974 (4) CIC/NPCOI/C/2021/661224 The Applicant filed an RTI application dated 20.08.2021 seeking information on the following 05 points:-Page 5 of 21
The CPIO, Nuclear Power Corporation of India Limited vide letter dated 27.09.2021 replied as under:-
Dissatisfied with the response received from the CPIO, the Applicant filed a First Appeal dated 01.10.2021 which was not adjudicated by the FAA.
Aggrieved and dissatisfied, the Applicant approached the Commission with the instant Second Appeal and Complaint.
A written submission dated 02.02.2023 has been received from PIO, NPCIL which reveals that the First Appeal was duly adjudicated vide order dated 19.01.2023 as under:Page 6 of 21
(5) CIC/NPCOI/A/2021/661178 (6) CIC/NPCOI/C/2021/661231 The Applicant filed an RTI application dated 13.10.2020 seeking information on the following 04 points:-Page 7 of 21
The CPIO, Nuclear Power Corporation of India Limited vide letter dated 07.12.2020 replied as under:-
The letters dated 02.11.2020 and 04.11.2020 mentioned hereinabove have been annexed with the PIO's reply. The CPIO, NPCIL vide a subsequent letter dated 11.11.2020 replied as under:-Page 8 of 21
Dissatisfied with the response received from the CPIO, the Applicant filed a First Appeal dated 27.11.2020 which was not adjudicated by the FAA.
Aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal and Complaint.
A written submission dated 02.02.2023 has been received from PIO, NPCIL which reveals that the First Appeal was duly adjudicated vide order dated
20.01.2023 upholding the replies sent by the PIO.
Page 9 of 21(7) CIC/NPCOI/A/2021/661189 (8) CIC/NPCOI/C/2021/661233 The Applicant filed an RTI application dated 12.01.2021 seeking information on the following 04 points:-
Page 10 of 21The CPIO, NPCIL vide letter dated 10.02.2021 replied as under:-
Subsequently, the CPIO, Nuclear Power Corporation of India Limited vide letter dated 26.02.2021 replied as under:-
Dissatisfied with the response received from the CPIO, the Applicant filed a First Appeal dated 26.02.2021 which was not adjudicated by the FAA.
Aggrieved and dissatisfied, the Applicant approached the Commission with the instant Second Appeal and Complaint.
A written submission dated 02.02.2023 has been received from PIO, NPCIL reiterating the above facts.Page 11 of 21
(9) CIC/NPCOI/A/2021/661193 (10) CIC/NPCOI/C/2021/661235 The Applicant filed an RTI application dated 23.01.2021 seeking information on 10 points, including the following:-
Etc. The CPIO, NPCIL vide letter dated 22.02.2021 replied as under:-
The CPIO, Nuclear Power Corporation of India Limited vide letter dated 26.02.2021 replied as under:-Page 12 of 21
Dissatisfied with the response received from the CPIO, the Applicant filed a First Appeal dated 01.03.2021 which was not adjudicated by the FAA.
Aggrieved and dissatisfied, the Applicant approached the Commission with the instant Second Appeal and Complaint.
A written submission dated 02.02.2023 has been received from PIO, NPCIL reiterating the above facts.
(11) CIC/NPCOI/C/2021/661226 The Complainant filed an RTI application dated 04.10.2021 seeking information on 03 points, viz.:-Page 13 of 21
The CPIO, NPCIL vide letter dated 03.11.2021 replied as under:-
The CPIO, Nuclear Power Corporation of India Limited vide letter dated 15.11.2021 replied as under:-
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 27.11.2021 which was not adjudicated by the FAA.
Having not received any response from the PIO, Complainant approached the Commission with the instant Complaint.
A written submission dated 02.02.2023 has been received from PIO, NPCIL reiterating the above facts.Page 14 of 21
Facts emerging in Course of Hearing:
The Appellant along with Smt Fatima Pinto, Executive Assistant participated in the hearing through video conference. He argued that he had filed the instant RTI applications to gather evidence to contest the issue of compromise of safety classifications in the AERB standards and international practices jeopardising the safety of nuclear power plants. He further stated that he had also filed grievance petitions to the BHEL (tender awardee), AEC and the PMO. However, no satisfactory action was taken on the same till date. He further stated that the first appeals were not decided in several matters till the issuance of notice of hearing by the Commission and the excuse of COVID-19 pandemic as the reason for delay was not acceptable since the CPIO replied to several RTI applications during the same period. In addition, the Appellant stated that exemption u/s 8 (1) (d) was incorrectly claimed by the FAA vide order dated 20.01.2023 without any reasons/ justification. Thus, he prayed for initiating appropriate action against the FAA. He also argued that the earlier order of the Commission dated 18.04.2022 was not appropriately complied with by the FAA.
The Respondent represented by S.K. Srivastava, CPIO and AGM (HR); Shri Brahma Prakash, Associate Director; Smt Shradha Gupta, CPIO and Sr Manager (HR); Shri V Parameswara Rao, AGM (Vigilance) and Shri R K Gupta, Chief Engineer participated in the hearing through video conference. Shri Srivastava stated that replies were provided to the Appellant in all the matters. The first appeal could not be decided within the stipulated time period due to the onset of the COVID 19 pandemic. However, orders were passed after receipt of the notice of hearing from the Commission. Regarding the information sought by the Appellant pertaining to the action taken by the CVO on his complaints in Second Appeal/ Complaint Nos CIC/NPCOI/A/2021/661178 and CIC/NPCOI/C/2021/661231, it was stated that similar issues were raised in CIC/NPCOI/A/2021/661189 and CIC/NPCOI/C/2021/661233 where it was replied that "no substandard nuclear unfit welding consumable is used by NPCIL. NPCIL is meeting the safety requirements and same has already been replied earlier also. The applicant may please disclose his interest in seeking such information on Nuclear Power Plants continuously from NPCIL". In addition, he stated that in Second Appeal/ Complaint Nos CIC/NPCOI/A/2021/661178 and CIC/NPCOI/C/2021/661231, the copies of the forwarding letter with annexed papers sent by the Company Secretary, NPCIL to the Director (Technical) NPCIL was also sent to the Appellant vide letter dated 07.12.2020. With regard to the compliance of the previous order of the Commission dated 18.04.2022, he referred to the FAA's order dated 30.05.2022, the relevant extract of which is as under:
Page 15 of 21 Page 16 of 21 Page 17 of 21 Page 18 of 21Decision:
In the light of the facts of the case and the submissions made by both the parties, the Commission at the outset observes that the issues raised in the instant matters are germane to the issues raised in Second Appeal No CIC/NPCOI/A/2020/118466 decided on 18.04.2022 and examining the compliance of the above direction is crucial to ascertain if any further order for disclosure of information can be pronounced herein or not. Following is the previous directions issued by the Commission:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission at the outset finds that the issues raised by the Appellant are of larger public interest pertaining to apprehensions regarding safety of nuclear power plants. In case part of the information sought contains commercially sensitive information of a third party or could threaten the life or physical safety of officials, the same can possibly be redacted/ obliterated as per Section 10 of the RTI Act, 2005. In the light of the above observations, the FAA and Addl. Director, NPCIL is directed to re-examine the first appeal and pass a reasoned speaking order under intimation to the Commission by 30.05.2022 after granting a fair opportunity of hearing to the Appellant..."
Complying with the above direction, the FAA pronounced a detailed and reasoned order dated 30.05.2022 which is verbatim quoted in the preceding paragraphs. In the said direction, the Commission while observing that the issues raised pertained to larger public interest suggested the FAA to resort to Section 10 to possibly redact/ obliterate third party sensitive information or information which can threaten the life/ physical safety of officials. The FAA vide its order concluded that test report as a whole contain sensitive information and no part can be severed. It is the Appellant's contention that since the Commission observed that larger public interest was involved, the information should be disclosed.
At this juncture, the Commission clarifies that the operative part of the order pronounced before was regarding re-examination of the first appeal by the FAA to pass a reasoned speaking order after taking into consideration the observations of the Commission and nowhere was a direction given to disclose the information. The FAA was also directed to re-examine applicability of Section 10 to ascertain if some information can be disclosed. The direction of the Commission has been appropriately complied with.
The order of the Commission was pronounced in view of the preamble of the RTI Act, 2005. The preamble of the RTI Act, 2005 speaks about harmonising the conflicting interest i.e., Informed citizenry and transparency of information vs. the Other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information.
Page 19 of 21The Hon'ble Supreme Court in the matter of CBSE Vs. Aditya Bandopadhyay 2011 (8) SCC 497 while dealing with the provisions of the RTI Act, inter alia, held that;
"61. Some High Courts have held that Section 8 of RTI Act is in the nature of an exception to Section 3 which empowers the citizens with the right to information, which is a derivative from the freedom of speech; and that therefore Section 8 should be construed strictly, literally and narrowly. This may not be the correct approach. The Act seeks to bring about a balance between two conflicting interests, as harmony between them is essential for preserving democracy. One is to bring about transparency and accountability by providing access to information under the control of public authorities. The other is to ensure that the revelation of information, in actual practice, does not conflict with other public interests which include efficient operation of the governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information. The preamble to the Act specifically states that the object of the Act is to harmonise these two conflicting interests. While Sections 3 and 4 seek to achieve the first objective, Sections 8, 9, 10 and 11 seek to achieve the second objective. Therefore when Section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as an equally important provision protecting other public interests essential for the fulfillment and preservation of democratic ideals.
62. When trying to ensure that the right to information does not conflict with several other public interests (which includes efficient operations of the governments, preservation of confidentiality of sensitive information, optimum use of limited fiscal resources, etc.), it is difficult to visualize and enumerate all types of information which require to be exempted from disclosure in public interest. The legislature has however made an attempt to do so. The enumeration of exemptions is more exhaustive than the enumeration of exemptions attempted in the earlier Act that is Section 8 of Freedom of Information Act, 2002. The Courts and Information Commissions enforcing the provisions of RTI Act have to adopt a purposive construction, involving a reasonable and balanced approach which harmonizes the two objects of the Act, while interpreting Section 8 and the other provisions of the Act."
In the context of exemption claimed u/s 8 (1) (d) of the Act, the following observations of the Hon'ble High Court of Delhi in Naresh Trehan vs Rakesh Kumar Gupta (W.P(C) 85/2010) decided on 24.11.2014 are also relevant:
If the nature of information is such that disclosure of which may have the propensity of harming one's competitive interests, it would not be necessary to specifically show as to how disclosure of such information would, in fact, Page 20 of 21 harm the competitive interest of a third party. In order to test the applicability of Section 8(1)(d) of the Act it is necessary to first and foremost determine the nature of information and if the nature of information is confidential information relating to the affairs of a private entity that is not obliged to be placed in public domain, then it is necessary to consider whether its disclosure can possibly have an adverse effect on third parties."
With regard to the action taken on Appellant's vigilance complaints, the Commission observes that the factual position has been clearly explained by the Respondent during the hearing and disputation of facts is outside the purview of this Commission's jurisdiction. The Hon'ble Supreme Court of India in the matter of Union of India v. Namit Sharma in Review Petition [C] No.2309 OF 2012 in Writ Petition [C] No.210 of 2012 with State of Rajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 of 2012 In Writ Petition [C] No.210 OF 2012 held as under:
"While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority.
Hence, no further intervention of the Commission is required in the instant matter. The Commission however notices that there has been substantial delay in deciding the first appeals for which the FAA, NPCIL is advised to ensure that provisions of the RTI Act, 2005 are strictly complied with in future. Penal provisions applicable to the CPIO as per Section 20 of the Act cannot be invoked against the FAA as per the direction of the Hon'ble High Court of Delhi in R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018. For redressal of his grievance, the Appellant is advised to approach an appropriate forum.
With the above observation, the instant Second Appeal stands disposed off accordingly.
वाई.
वाई. के . िस हा)
Y. K. Sinha (वाई िस हा
Chief Information Commissioner (मु य सूचना आयु )
Authenticated true copy
(अिभ मािणत स ािपत ित)
S. K. Chitkara (एस. के . िचटकारा)
Dy. Registrar (उप-पंजीयक)
011-26186535
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