Central Information Commission
CIC/AD/A/09/00051/AD
Dated January 30, 2009
Name of the Appellant : Mr. Anil Agrawal
Name of the Public Authority : BSNL, Ambala
Background
1. The Appellant filed an RTI request dt.22.8.08 with the CPIO, BSNL, Ambala.
He requested for the photocopies of all letters and notesheets pertaining to an
APO and requested the following:
i) T.E. No.MM/HR-NIT/2006-2007/20 dated 19.10.06 opened on
21.11.06
ii) APO No.MM/HR-2011/PVC Twin/Tender/2006/07/77 dt.2.1.08 on
Surya Cables
iii) AGM (MM) Letter No.MM/HR-2011/PVC Twin/Tender/2006-7/88
dt.2.7.08 to Surya Cables.
The CPIO replied on 22.9.08 stating that the custodian of information has
informed that the case related to the APO is under investigation by the
Arbitrator appointed to settle the dispute of the concerned party with whom
the APO was placed. He added that information includes commercial
confidence and trade secrets and that there is no larger public interest
involved in disclosure of the information and therefore it is denied under the
provisions of Section 8(1)(d) & (h) of the RTI Act. The Appellant filed an
appeal dt.3.10.08 with the Appellate Authority reiterating his request for the
information. The First Appellate Authority replied on 25.10.08 upholding the
decision of the CPIO. Aggrieved with the reply of the First Appellate
Authority, the Appellant filed a second appeal dated Nil before CIC, which was
received by the Commission on 17.11.08.
2. The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the
hearing for January 30, 2009.
3. Mr. V.K. Gupta, GM (NC)/CPIO represented the Public Authority
4. The Appellant was present during the hearing.
Decision
5. The Respondent submitted that the Appellant had sought letters and
notesheets pertaining to the APO starting from the proposal till the
appointment of the Arbitrator indicating the reasons for the reduction in
tendered quantity from 2769 km of cables to 2077 km. He stated that the
quantity of PVC Twin was reduced under the clause no. 5(a) of Section V of
bid documents, according to which the purchase will have the right to
increase or decrease the tendered quantity upto 25% without any change in
the unit price or other terms and conditions at the time of award of contract.
6. The Appellant stated that he has requested for the information in his
individual capacity. He appealed on the grounds that he is the partner and
GPA holder of the firm Surya Cables on whom the APO was placed and hence
the question of a third party does not apply in his case. He also pointed out
that the case is not under investigation but referred to Arbitrator under the
Arbitrator and Conciliation Act 1996, for settlement of the dispute. Also, there
was no commercial confidence and trade secret, the disclosure of which would
harm the competitive position of the third party because a) there was only
one bidder in the tender, b) the tender has already been finalized, c) the
person seeking the information (the Appellant himself) is the partner and GPA
holder of the party whose information has been asked for. Hence Section 8(1)
(d) of the RTI Act does not apply for the reasons given so far. He also argued
that as per the appeal, the Section 8(1) (h) also does not apply because there
is no investigation and there is no offender.
7. The Commission holds that Arbitral proceedings, being in the nature of any
ordinary Court proceedings, demand utmost transparency; hence the plea
adopted by the Respondent for non disclosure of documents is unsustainable.
Even otherwise, arbitral proceedings are not in the nature of investigation so
as to debar accessibility of documents relied upon, since, Arbitration as an
Alternate Dispute Redressal Mechanism, does not debar the disclosure of any
public document in the similar way like any other Court proceedings. Hence
the information sought by the appellant, is clearly out of the ambit of Section
8 (1) (h) of the RTI Act 2005 and this averment of the respondent is clearly
unsustainable. The Commission also concurs with the submission of the
Appellant that Section 8(1) (d) of the RTI Act 2005 does not apply in this case
since the person seeking information is the Appellant himself who is also the
partner & GPA holder of the party whose information has been asked for and
since he was the only bidder in the tender which had been finalised.
Therefore, in the light of the foregoing arguments, the CPIO is directed to
furnish the information, as sought by the Appellant, within 15 days from the
receipt of this order.
(Annapurna Dixit)
Information Commissioner
Authenticated true copy:
(K.G.Nair)
Designated Officer
Cc:
1. Mr. Anil Agrawal
B-34, Lajpat Nagar
Part-I
1st Floor
New Delhi 110 024
2. The PIO &
The General Manager (A)
Bharat Sanchar Nigam Limited
O/o Chief General Manager
Haryana Telecom Circle
Ambala 133 001
3. The Appellate Authority &
The Chief General Manager Telecom
Bharat Sanchar Nigam Limited
O/o Chief General Manager
Haryana Telecom Circle
Ambala 133 001
4. Officer in charge, NIC
5. Press E Group, CIC