IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15743 of 2009(K)
1. CENTRE FOR EARTH SCIENCE STUDIES
... Petitioner
Vs
1. DR.ANSOM SEBASTIAN
... Respondent
For Petitioner :SRI.U.K.RAMAKRISHNAN (SR.)
For Respondent :SRI.M.AJAY, SC, STATE INFORMATION COMMN
The Hon'ble MR. Justice V.GIRI
Dated :28/10/2009
O R D E R
V.GIRI, J
.......................
W.P.(C)s.15743, 19365, 19367, 19792 &
19806 of 2009
.......................
Dated this the 28th day of October, 2009
JUDGMENT
These writ petitions raise a common issue, concerning
the correctness of an order passed by the State Information
Commission, exercising its powers under the Right to
Information Act, 2005, (Central Act 22/2005) (hereinafter
referred to as ‘the Act’). The parties in these writ petitions
are common. Writ petitions have therefore, been heard
together and are being disposed of by a common judgment. I
will refer to the facts in W.P.(C).15743/2009 in detail.
2. Petitioner is a Research and Development Institution of
the Kerala State Council for Science Technology &
Environment. 1st respondent is working with the petitioner as
Scientist E1 By an application dated 7.1.2007, under the
Act, she sought for certified copies of Self Assessment
Reports for the period 1980 – 1997 in respect of herself as
well as six of her colleagues. By another application filed on
9.1.2007, the 1st respondent requested for certified copies
of comments and marks awarded by the Assessment
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Cases
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Committee. By another application dated 7.2.2007, she
sought for certified copies of Annual Confidential Reports
(ACRs) in respect of herself and six of her colleagues, for
the period 1980-1997.
3. The Public Information Officer of the petitioner denied
the information sought for on the ground that the same
does not come under the Act. 1st respondent preferred an
appeal under the Act before the Appellate Authority, who
directed the petitioner to furnish information/documents
relating to the applicant as also the names of the members
of the Assessment Promotion Committee. The Appellate
Authority denied information and copies of documents
relating to other personnel.
4. 1st respondent then approached the State Information
Commission with appeals against the orders of the Appellate
Authority. 2nd respondent required the Appellate Authority
to submit its reports. Appeals were then heard by the 2nd
respondent, the State Information Commission. The stand
taken by the petitioner before the State Information
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Cases
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Commission was that the information/documents sought for
by the applicant, the 1st respondent, are confidential in
nature and relates to other personnel, that the disclosure of
the same would adversely affect the inter personnel
relationship and the information sought is purely personal
which has no relevance to any public interest. That the
State Information Commission, the 2nd respondent, passed
Ext.P3 order allowing the appeals filed by the 1st respondent
and directed the petitioner to furnish the information and
copies of the documents sought by the 1st respondent.
Ext.P3 has been challenged in this writ petition.
5. A counter affidavit has been filed by the 1st respondent.
I heard Mr.U.K.Ramakrishnan, learned senior counsel for
the petitioner, Mr.M.Ajay, learned counsel for the State
Information Commission and Mr.S.P.Chaly, learned counsel
for the 1st respondent.
6. 2nd respondent, the State Information Commission,
found that the public authority was reluctant in imparting
information sought by the 1st respondent on the confidential
W.P.(C).15743/09 & Connected
Cases
4
reports of the other employees as also the information on
the proceedings of the Assessment Promotion Committee
including the marks awarded to others, on the grounds of
secrecy and confidentiality and on the premise that request
did not have any public interest. The public authority
essentially preceded on the premise that disclosure of the
information was exempted under Section 8(1)(e) and 8(1)(j)
of the Act.
7. The Commission found that the confidential reports of
the employees of an Organisation have limited
confidentiality, to the extent that it should not fall into the
hands of someone not concerned with the establishment.
But it cannot remain under wraps forever. It was further
found that there was a fiduciary relationship between the
employer and the employee of an Organisaion. Commission
also found that confidential reports are written by officers
and it is the accepted practice that the officers’ report
should be what has been recorded on his over all
performance. Confidential report is an instrument to
continuously assess an employee and to remind him as to
W.P.(C).15743/09 & Connected
Cases
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how he/she stands in the eye of the Assessing Officer. An
employee should be provided access to his/her confidential
report essentially when the same are specifically asked for.
There is no reason why the process should be kept secret.
The Commission found as a fact that the proceedings of the
Committee on the confidential report of the officers cannot
be kept under the veil of secrecy. Commission therefore,
found that the information, in the context, is in public
domain and therefore, has to be provided, free of cost
within seven days from the date of the appeal.
8. Learned counsel for the petitioner contended that
there are certain informations, the disclosure of which is
exempted under Section 8 of the Act. What is relevant in
the context is Section 8(1)(e) and (j) of the Act which reads
as follows.
8(1)(e) – Information available to a person, in
his fiduciary relationship, unless the competent
authority is satisfied that the larger public
interest warrants the disclosure of such
information
8(1)(j) – Information which relates to personal
information the disclosure of which has not
W.P.(C).15743/09 & Connected
Cases
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relationship to any public activity or interest,
or which would cause unwarranted invasion of
the privacy of the individual unless the Central
Public Information Officer or the State Public
Information Officer or the appellate authority,
as the case may be, is satisfied that the larger
public interest justifies the disclosure of such
information
Provided that the information, which
cannot be denied to the Parliament or a State
Legislature shall not be denied to any person.
9. It is contended that while an employee might be
entitled to get copies of all her confidential records, she
cannot get the confidential records or the assessment
records of other employees. It was contended that insofar
as the ACRs of other employees are concerned, 1st
respondent herein cannot seek disclosure of the same as a
matter of right. But such disclosure would be permissible
only when larger public interest so warrants.
10. Learned counsel for the 1st respondent as also the
learned counsel for the State Information Commission
contended that the information sought for by the applicant
cannot be considered as information available with the
petitioner, in the course of any fiducial relationship that
the petitioner may have with any other person and
W.P.(C).15743/09 & Connected
Cases
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consequently, the disclosure of the same would not come
under Section 8(1)(e) of the Act. So also it was contended
that Section 8(1)(j) exempts only disclosure of personal
information, disclosure of which has no relationship to any
public activity or interest. Nor can the information cause
any unwarranted invasion of the privacy of the individual.
Reference is also made to Section 22 of the Act which
provides that the provisions of the Act shall have overriding
effect over any other law for the time being in force.
11. I am not in a position to find that the information
sought for by the 1st respondent in the present case is an
information which is possessed by the petitioner in any
fiduciary capacity vis-a-vis any other employee of the
Organisation. The information sought for only relates to the
proceedings of the Assessment Promotion Committee and
the confidential reports of other employees, who were
considered along with the petitioner. Obviously, this
information possessed by the employer cannot be treated as
information that is possessed by a person placed in a
fiduciary capacity with any of the employees of the
W.P.(C).15743/09 & Connected
Cases
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Organisaion. Relationship between the employer and the
employee is normally contractual or in certain cases, it
could be regulated by statutory rules. Of course, there
could be certain information passed by an employee to an
employer which may have to be retained by the employer
without disclosure. Similarly, there could be certain
information about the employer that is in the possession of
the employee and retention of such information without
disclosure, may also be warranted. This would, in certain
given cases, bring into existence a fiducial relationship
between the employer and the employee. But that is
different from contending that the relationship between an
employer and employee in any given case, is fiduciary in
character.
12. Obviously, the assessment reports of the employee,
who himself was an applicant under the Act cannot be
withheld by any employer who is otherwise comprehended
under the Act. The disclosure of such information is not
exempted and I should say that the learned senior counsel
for the petitioner has, fairly, not taken up any such
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Cases
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contention. Further more, order of the Appellate Authority
in the present case itself directed the petitioner to disclose
the information relating to the 1st respondent, to her on the
basis of her application and the said order was not appealed
against by the petitioner before the State Information
Commission.
13. The dispute is with regard to the confidential records
of other employees who were considered by the Assessment
Committee along with the petitioner. The proceedings of
the Committee have also long since been concluded. May
be the 1st respondent feels aggrieved by the proceedings of
such Committee. The information sought for by the
applicant, insofar as the present case is concerned, is the
Annual Confidential Report of herself and her colleagues
for the period from 1980 to 1997. Obviously such ACRs
would have been considered by the Assessment Promotion
Committee and it is therefore, difficult to accept the
contention that they still would retain a character of
confidentiality within the Organisation. After all, such ACRs
of the petitioner and her colleagues have already been
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Cases
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considered by a Committee and the information sought by
the applicant obviously cannot be considered as any
personal information relatable to the colleagues of the
applicant.
14. It might be a different case where the confidential
records of the employee of an Organization might still be in
the realms of a personal information insofar as that
employee is concerned. It is possible that any adverse
remarks against any employee in the ACR could later be
expunged on representation. There are, of course
statutory rules governing such procedure in Government
service and certain other public services as well. There
would be standing orders or other laid down procedure in
other Organisations as well. The disclosure of such
information relating to an employee, at the instance of
another employee in the same Organization might come
within the purview of Section 8(1)(j) of the Act. But the
information sought for in the present cases do not come
under any such exempted category.
W.P.(C).15743/09 & Connected
Cases
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15. I also take note of the fact that there is no contention
by the petitioner that the information as such sought for by
the applicant, the 1st respondent is not available. For all
these reasons, I am of the view that no grounds have been
made out for interfering with the impugned orders passed
by the 2nd respondent, the State Information Commission.
Writ petitions are bereft of merit and hence dismissed.
V.GIRI,
Judge
mrcs