Central Information Commission
CIC/OK/A/08/00893-AD
Dated May 15, 2009
Name of the Applicant : Mr. Sunil Kumar Bansal
Name of the Public Authority : Southern Railway, Chennai
Background
1. The Applicant filed his RTI application dated 21.04.08 with the CPIO,
Southern Railways, Chennai requesting for the following documents:
i) Report sent by the Southern Railway Vigilance to the Board for
obtaining the first stage advice of the CVC – Ref – Charge memo
vide No. P (G)CON/1/17/2205 dated 15.4.05.
ii) Copy in full – the 1st stage advice of the CVC in above case.
2. The CPIO replied on 02.05.2008 denying the information “…. since the
D&AR process is yet to come to finality, u/s 8(1)(h) of RTI Act 2005….”
The information was also denied on the ground that the same could not be
parted with due to the embargo created under provisions of u/s 8(1)(e) of
the RTI Act 2005 since the report sought by the Applicant contained
information on the other officers and officials other than the Applicant.
3. Being denied information, the Applicant filed a First Appeal on 09.05.2008
with the Appellate Authority reiterating the contents of his RTI request.
Among the various arguments and submissions made by the Appellant the
following are the primary ones: i) The Appellant contended in his Appeal
the inapplicability of both the exemptions as sought by the CPIO under
provisions of Section 8(1) (e) and Section 8(1) (h) of the RTI Act 2005 in
the instant case. ii) Reliance was also placed by the Appellant on the
judgment passed by the Hon’ble High Court of Delhi in the matter of
Bhagat Singh Vs. Central Information Commission, followed by the
decision passed by the Hon’ble Chief Information Commissioner in the
matter of Dhirendra Krishna vs. CBI in Case No. CIC/WB/2008/00964, as
well as couple of other decisions passed by the Commission. iii) In the
Appeal the Appellant also referred to the letter of the Adviser Vigilance,
Railway Board, Ministry of Railways addressed to the General Manager,
Southern Railway stating inter alia that although clauses 8(1) (g), (h) and
(j) of the RTI Act 2005, exempts the Vigilance Department from divulging
any information while investigations are in progress, the same protection
ceases to exist after the completion of the enquiry. The Appellant states
that since in his case the investigation (enquiry) was completed long back
and even the chargesheet was issued to him, hence the exemption as
sought by the CPIO under Section 8(1)(h) of the RTI Act 2005 is not
applicable in view of the clear position of law which is reaffirmed in the
letter of the Adviser Vigilance, Railway Board, Ministry of Railways. iv)
The Appellant also challenged the act of non application of the provisions
of the Section 11 of the RTI Act 2005 by the CPIO while dealing with the
Appellant’s request for information even if it is considered that the
information sought contained information about some other officers apart
from the Appellant. The Appellate Authority replied vide the letter dated
03.06.2008 reiterating the CPIO’s arguments while denying the
information and upholding the decision of the CPIO.
4. Being thus aggrieved by constant denial of information, the Appellant filed
an Appeal before the Central Information Commission on 09.06.2008. The
Appellant reiterated the entire facts of the case in his contentions and
addressed arguments on the following key issues:
i) the First Appeal was disposed off by the CPIO instead of the Appellate
Authority which is the proper course of law, as has also been held in a
decision of the Commission being CIC/AT/A/2007/00080 dated
04.07.2007;
ii) despite specific request of the Appellant, the First Appeal was disposed
off by the CPIO [not even the Appellate Authority] without granting any
hearing to the Appellant, which is against the spirit of law as also held by
the CIC in decisions CIC/OK/A/2007/01453 dated 09.04.2008 and
CIC/AT/A/2006/00072 dated 31.05.2006;
iii) the CPIO has failed to address with the specific issues raised in the
First Appeal while disposing off the Appeal vide the non speaking order
dated 03.06.2008;
iv) inapplicability of the provisions of Section 8 (1) (e) of the RTI Act 2005
in the instant case specially in view of the Central Vigilance Commission’s
letter no. 99/VGL/66 dated 28.09.2000 directing all Ministries to supply its
first stage advice and second stage advice to the concerned Charged
Official in keeping with the principles of natural justice and fair play.
Furthermore reliance was also placed on the CIC decision no. 1323/IC
(A)/2007 dated 10.10.2007 deciding similar issues in favor of disclosure of
information;
v) inapplicability of the provisions of Section 8 (1) (h) of the RTI Act 2005
while placing reliance on CIC decisions on this issue as also the decision of
the Hon’ble High Court of Delhi in the matter of Bhagat Singh vs. CIC
deciding the scope of applicability of the Section 8 (1)(h) of the RTI Act
2005;
vi) deliberate non application of the provisions of Section 11 of the RTI Act
2005 by the Respondent Public Authority;
vii) insufficiency of the partial information supplied etc.
5. The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled
the hearing for May 15, 2009 and a communication dated 29.04.2009 was
accordingly sent to the parties intimating the date of hearing of the
appeal.
6. Mrs. K. Bhuvaneshwari, PIO & Dy. CVO/A, Mr. A.P. Mishra, Appellate
Authority & AGM and Mr. B Nageshwara Rao, APIO & JD/PG represented
the Public Authority.
7. The Applicant was not present during the hearing.
Decision
8. The Respondent Public Authority submitted their reply to the Appeal
vide a communication dated 12.05.2009. However the rebuttal was
neither too specific nor directly answering the contentions raised by
the Appellant. While dealing with the exemption sought by The
Respondent on the ground of Section 8 (1) (h) of the RTI Act 2005,
it is noted that the Respondent has submitted that relevant portion
of the CVC’S 1st stage advice has been provided as per CVC circular
No. 99/VGL/66 dated 28.09.2000. However, perusal of the facts of
the case clearly indicates that the investigation in the case is already
over and the Appellant has been chargesheeted already, hence
there can be no apprehension so as to seek exemption from
disclosure of information under provisions of Section 8 (1) (h) of the
RTI Act 2005.
Moreover even natural justice demands that the information
relevant to the accused should be disclosed in order that the accused be
granted opportunity to prove his innocence.
9. The Commission, while considering the second argument of the
Respondent with respect to Section 8 (1) (e) of the RTI Act 2005 about
denial of disclosure of information since the same is held in fiduciary
capacity; the meaning of the word “fiduciary relationship” was analysed
from various perspectives and the following connotations could be
summarised:
• Various decisions of the Commission indicate that fiduciary
relationship is a relationship of trust which may also be between an
individual and a juristic person such as Government, University or a
Bank.
The word “fiduciary” is derived from the Latin fiducia meaning “trust”, a
person (including a juristic person such as Government, University or
Bank) who has the power and obligation to act for another under
circumstances which require total trust, good faith and honesty.
• The fiduciary relationship can also be one of moral or personal
responsibility due to the superior knowledge and training of the
fiduciary as compared to the one whose affairs the fiduciary is
handling. In short, it is a relationship wherein one person places
complete confidence in another in regard to a particular transaction or
one’s general affairs of business.
• In Fiduciary Relationship, a person with the legal duty to act primarily
for another’s benefit enjoys a position of trust, good faith and
responsibility. Thus the word “Fiduciary” is often used as an
alternative term for “trustee”.
In the instant case, no such relationship emerges or exists giving rise to
“Fiduciary relationship”. Hence, the Commission has arrived at the
conclusion that CVC was not holding any document in confidence, but
inquired into the whole incident and prepared an Inquiry Report and
handed it over to Southern Railways. Therefore, the instant case does not
fall within any of the categories of the definitions as stated hereinabove.
Hence the plea of the Respondent Public Authority seeking exemption
under the garb of “fiduciary relation” is incongruous. Accordingly, the
Commission decides that since the documents have not been held in a
fiduciary capacity since no “fiduciary relationship” existed, hence the
denial of the Public Authority to furnish the information sought by the
Appellant under the garb of the Section 8 (1) (e) is completely ruled out.
10. In the light of the settled law as mentioned hereinabove and in view of the
peculiar facts of this case, the Commission hereby directs the Respondent
to disclose the information asked for by the Appellant by 10th June 2009.
11. Appeal is disposed off accordingly in the above terms.
(Annapurna Dixit)
Information Commissioner
Authenticated true copy:
(G.Subramanian)
Asst. Registrar
Cc:
1. Mr.Sunil Kumar Bansal
Deputy Chief Engineer/Works
O/o General Manager
Southern Railway
Headquarters Office
2nd Floor, Park Town
Chennai 600 003
2. The CPIO
Southern Railway
Headquarters Office
Vigilance Branch
Chennai 600 003
3. The Appellate Authority
Southern Railway
Headquarters Office
Vigilance Branch
Chennai 600 003
4. Officer in charge, NIC
5. Press E Group, CIC