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Decision No. CIC/SG/A/2010/002600/12400
Appeal No. CIC/SG/A/2010/002600
Relevant Facts
emerging from the Appeal:
Appellent : Mr. K. K. Bora,
State President, AICCTU,
AICCTU State Office, Jangi
Bhavan, Moti Nagar,
P.O. Arjunpur, Haldwani (Nainital,U.K.)
Respondent : Public Information Officer,
Employees Provident Fund Organization
Sub-Regional Office,
Khurana Complex, 2nd floor, Opp. Judges' Court,
Nainital Road, Haldwani,
Nainital, U.K.
RTI application filed on : 02/03/2009
PIO replied : 23/04/2009
First appeal filed on : 21/04/2009
First Appellate Authority order : not enclosed
Second Appeal received on : 15/09/2010
Information sought: PIO's reply
1. Dabur India Ltd. has submitted the list(annexed) of the For 2(a) - The information can't be provided as
labourers employed in Dabur India Ltd. SIDCUL, Pantnagar it pertains to a third party and the same is in
to the Labour Commissioner, Uttarakhand, Labour Office, fiduciary nature.
Haldwani. For 2(b) - If an establishment fails to comply
2.(a) Whether the E.P.F of the said labourers is being with the provisions of the E.P.F. and M.P. Act,
collected? If yes, provide their E.P.F. account no.s. legal actions under various sections such as 7A,
2.(b) If their E.P.F. hasn't been collected, till when it's going 14, 14B, 7Q are initiated against the defaulter.
to be done?
3. If the E.P.F. is not being collected, what action will be Same as answer for 2(b).
taken against the institution and when?
4. Whether the list given to your office by Dabur India Ltd. The information can't be provided as it pertains
SIDCUL, Pantnagar matches the one annexed to this to a third party.
application.
5. How many labourers' E.P.F. has been collected by the -do-
institution and the contractors to get employed in Dabur India
Ltd., SIDCUL, Pantnagar.
Grounds for first appeal:
Information not provided by the PIO within the time mandated in the RTI Act.
The First Appellate Authority ordered:
Not enclosed.
Grounds for second appeal:
Unsatisfactory response by the PIO despite the order of the FAA.
Relevant Facts emerging during Hearing:
The following were present
Appellant: Mr. K. K. Bora ;
Respondent: Absent;
The PIO has sent a letter of 07/12/2010 by which he has stated that the second appeal of the
Appellant is time barred and hence should not be taken. The appellant shows that he had filed the
second appeal on 03/07/2009 which is within the time prescribed under the RTI Act to the Chief
Commissioner’s Office. He states that he tried to pursue the matter on telephone was assured that the
matter would be listed for the hearing some time. However, since he saw that no hearing was held and
nobody was able to give him a number for his appeal he decided to file another appeal on this matter
on 07/12/2010. The Commission has seen the speed post receipt and accepts the contention of the
Appellant that the delay in filing the second appeal was because he has filed it second time and his
second appeal filed earlier has not been registered by the Commission.
The PIO has refused to give information by his letter of 23/04/2009 claiming that the information
regarding query-1 to 4 cannot be provided since it is third party and the same is in fiduciary nature.
The PIO has erred in his denial of information. Section-11 of the RTI Act is the procedural section
which expects the PIO to refer to the third party who may have given the information when “it has
been supplied by the third party and has been treated as confidential by the third party”. Thus it is
necessary that the third party should have some choice in supplying the information and should have
provided it with the condition of confidentiality. The information sought by the Appellant would have
been supplied by the Third Party M/s Dabur India Ltd. in discharge of a statutory requirement. Hence
Ms/ Dabur India Ltd. would not have had any choice in the matter and could not have claimed
confidentiality over the information supplied. The PIO has claimed that the information is exempt
under Section-8(1)(e) of the RTI Act on the premise that the information is held by EPFO in the
fiduciary relationship.
Section 8 (1) (e) of the RTI Act exempts from disclosure ‘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;’
The traditional definition of a fiduciary is a person who occupies a position of trust in relation to
someone else, therefore requiring him to act for the latter’s benefit within the scope of that
relationship. In business or law, we generally mean someone who has specific duties, such as those
that attend a particular profession or role, e.g. doctor, lawyer, financial analyst or trustee. Another
important characteristic of such a relationship is that the information must be given by the holder of
information who must have a choice,- as when a litigant goes to a particular lawyer, a customer
chooses a particular bank, or a patient goes to particular doctor. An equally important characteristic for
the relationship to qualify as a fiduciary relationship is that the provider of information gives the
information for using it for the benefit of the one who is providing the information. All relationships
usually have an element of trust, but all of them cannot be classified as fiduciary. Information provided
in discharge of a statutory requirement, or to obtain a job, or to get a license, cannot be considered to
have been given in a fiduciary relationship.
In the instant case the information would have been provided by M/s Dabur India Ltd. in fulfillment
of statutory requirement to EPFO and this information cannot be claimed to have been provided in a
fiduciary relationship. In view of the following the PIO’s denial of information is not as per law.
Decision:
The Appeal is allowed.
The PIO is directed to provide the complete information to the appellant as per
available records, before 10 June 2011.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi
Information Commissioner
16 May 2011
(In any correspondence on this decision, mention the complete decision number.) (SK)