"Record" includes any document and file. Neither the definition clause, nor any provision of the Act postulates that information, prior to enforcement of the Act, cannot be supplied to a citizen. The only fetters prescribed are under Sections 8, 9, 11 and 24 of the Act. Even here no bar is provided for supplying information recorded prior to the enactment. In fact, Section 6 of the Act empowers the citizens to seek information and Section 7 casts a duty and obligation upon the prescribed authorities to furnish the same, except where it cannot be so done, and that too on limited grounds and for assigned reasons.
17. In Secretary General, Supreme Court of India v. Subhash Chandra Agarwal, MANU/DE/0013/2010 : AIR 2010 Delhi 159 (Full Bench), the Court held as under:
The source of right to information does not emanate from the right to Information Act. It is a right that emerges from the constitutional guarantees under Article 19(1)(a) of Constitution of India. The Right to information Act is not repository of the right to information. Its repository is the constitutional rights guaranteed under Article 19(1)(a). The Act is merely an instrument that lays down statutory procedure in the exercise of this right. Its overreaching purpose is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and to help the governors accountable to the governed. In construing such a statute the Court ought to give to it widest operation which its language will permit. The Court will also not readily read words which are not there and introduction of which will restrict the rights of citizens for whose benefit the statute is intended.
18. Section 8(3) of the Act specifically provides that information relating to any occurrence, event or matter, which has taken place, occurred or happened 20 years before the date on which any request is made under Section 6 shall be provided to any person making a request under this Section.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLACWPs No.6675, 6676, 6677, 6678, 6679,
6680, 6681, 6682, 6683 & 6824 of 2013.
Date of Decision : March 1, 2014.
State Bank of India
(In all the petitions).
versus
The Central Information Commission &
Another (In all the petitions).
The Hon’ble Mr. Justice Sanjay Karol, Judge.
The Hon’ble Mr. Justice V.K. Sharma, Judge.
Citation;AIR 2014 HP21,
The issue, which arises for consideration in these
petitions, is as to whether names of the Reporting, First and
Second Review/Accepting Authority, authors of the Annual
Confidential Reports (for short ACRs) of respondent Santosh
Kumar Kaushal (hereinafter referred to as the applicant),
can be disclosed to him under the provisions of the Right to
Information Act, 2005, or not.
2.
Applicant, who is presently posted as Manager
(OSD) in the State Bank of India, The Mall, Shimla
(hereinafter referred to as the Appropriate Authority),
following
information
vide
application
dated
sought
17.8.2010 (Annexure P-1):
(ii) Name of Reporting Authority, Designation & Grade
Scale:
(iii) Name of Reviewing Authority/Accepting Authority,
Designation & Grade Scale:
(iv) Name of members of IInd Reviewing Authority/
Accepting Authority, Designation & Grade Scale.
(v) Score awarded by the Reporting Authority & Score
reviewed by the Ist & IInd Reviewing Authority/
Accepting Authority in the following parameters.
Reporting
Authority
Sr
No.
Whether cognizance was given to Self Appraisal
submitted by the Reportee: Yes/No
“(i)
Score
Awarded
1
2
3
4
Part A
Part B
Part A
Part B
Total
Out
of
Max.
Marks
Ist
Authority/
Accepting
Score
Revi-
ewed/
Accepted
40
20
20
20
100
Reviewing
Ist
Authority
Score
Reviewed/
Accepted
Out of
Max.
Marks
40
20
20
20
100
IInd
Reviewing
Authority/
IInd
Accepting Authority
Score
Score
Revie-
Revi-
wed/
ewed/
Accepted Accepted
Out
of
Max.
40
20
20
20
100
vi) Adverse Remarks, if any:
vii) Date on which ACR as on 31st March,
written/reported: by the Reporting Authority.”
3.
1995
is
Vide communication dated 13.9.2010 (Annexure
P-2), of the Central Public Information Officer & Assistant
General Manager of the petitioner-Bank, applicant was
refused information sought in terms of para (i) to (v) & (vii)
(supra) for the reason that being fiduciary in relationship,
the
same
was
exempted
from
disclosure
under
the
provisions of Section 8(1)(e) & (g) of the Right to
Information Act, 2005 (hereinafter referred to as the Act).
Insofar as information sought in terms of para (vi), applicant
was informed that there were no adverse remarks in his
4.
ACRs for the period in question.
Aggrieved, applicant preferred an appeal, which
4.11.2010 (Annexure P-3).
stood rejected by the Appellate Authority vide order dated
Relentlessly, he pursued the
matter before the Second Appellate authority and vide
impugned order dated 24.10.2011 (Annexure P-5), the
appropriate authority stands directed to furnish information
“Commission had heard both sides and on the
ratio of the CIC order dated 27 May 2008 and 24
September 2008 directs respondent to provide
information in respect of points ii, iii, iv and vi to the
appellant. Information in respect of v) has already
been furnished to the appellant. In our view there
appears to have been a misreading of section 8(1)(3)
of the Act by the CPIO and the first appellate
authority. The fiduciary relationship, if at all, is
between the employer and employee.
The
information which is expected to be kept exempt
from disclosure is the information concerning the
employee, in this case, the appellant herein. The
exemption is from disclosure to third-party and
certainly not to the appellant himself.”
5. The second Appellate Authority disposed of his
to the applicant, to the following effect:
appeals by a common order, which stands assailed by way
of separate petitions.
Since common questions are
involved, these petitions are being disposed of by a
common judgment. We have narrated the facts of the first
writ petition.
6.
It is not in dispute that applicant is seeking
information from the appropriate authority with regard to
7.
third party information is sought for by him.
No
his own ACRs recorded over different period of time.
At the threshold, we may also observe that on
27.12.2013, Ms Devyani Sharma, learned counsel for the
petitioner-Bank, made a request for an adjournment for
placing certain documents on record, which was turned
down, for the reason that not only matter was part-heard
from the previous day but also the point involved was
purely legal. Needless to add, earlier adequate opportunity
was afforded to the parties to complete their pleadings. In
fact there is nothing new, which the petitioner wanted to
place on record, which could not have been placed at the
time of filing these petitions.
Inconsistency on a point of law, in the earlier
8.
decisions rendered by the apex Court (two-Judge Bench), in
Union of India v. Major Bahadur Singh, (2006) 1 SCC 368;
and U.P. Jal Nigam v. Prabhat Chandra Jain, (1996) 2 SCC
363, now stands conclusively settled by three-Judge Bench
of apex Court in Sukhdev Singh v. Union of India and others,
(2013) 9 SCC 566, wherein it is held as under:
“6.
We are in complete agreement with the
view in Dev Dutt v. Union of India, (2008) 8 SCC
725
particularly paragraphs 17, 18, 22, 37 &
41 as quoted above. We approve the same.
7.
A three Judge Bench of this Court in Abhijit
Ghosh Dastidar vs. Union of India and others,
(2009) 16 SCC 146 followed Dev Dutt. In para 8
of the Report, this Court with reference to the
case under consideration held as under:
“8.
Coming to the second aspect, that
though
the benchmark “very good” is
required for being considered for promotion
admittedly the entry of “good” was not
communicated to the appellant. The entry
of
'good'
should
have
been
communicated to him as he was having
“very good” in the previous year. In those
circumstances,
in
our
opinion,
non-
communication of entries in the ACR of a
public servant whether he is in civil,
judicial, police or any other service (other
than the armed forces), it has
civil
consequences because it may affect his
chances for promotion or getting other
benefits. Hence, such non-communication
would be arbitrary and as such violative of
Article 14 of the Constitution. The same view
has been reiterated in the above referred
decision (Dev Dutt case) relied on by the
appellant. Therefore, the entries “good” if at
all granted to the appellant, the same
should not have been taken
into
considered
for
consideration for being
promotion
to
the higher grade.
The
respondent has no case that the appellant
had ever been informed of the nature of the
grading given to him.”
8. In our opinion, the view taken in Dev Dutt that
every entry in ACR of a public servant must be
communicated to him/her within a reasonable
period is legally sound and helps in achieving
threefold objectives. First, the communication of
every entry in the ACR to a public servant helps
him/her to work harder and achieve more that
helps him in improving his work and give better
results. Second and equally important, on being
made aware of the entry in the ACR, the public
servant may feel dissatisfied with the same.
Communication of the entry enables him/her to
make representation for
upgradation
of the
remarks
entered
in
the
ACR.
Third,
communication of every entry in the ACR brings
transparency in recording the remarks relating to a
public servant and the
system becomes more
conforming to the principles of natural justice.
We, accordingly, hold that every entry in ACR –
poor, fair, average, good or very good – must
be communicated to him/her within a reasonable
period.
9. The decisions of this Court in Satya Narain
Shukla vs. Union of India and others, (2006) 9 SCC
69, and K.M. Mishra vs. Central Bank of India
and others, (2008) 9 SCC 120,
and the other
decisions of this Court taking a contrary view are
declared to be not laying down good law.”
(Emphasis supplied)
Noticeably, in Dev Dutt v. Union of India and
9.
others, (2008) 8 SCC 725, the apex Court had held that
every entry in the ACRs of a public servant must be
communicated to him within a reasonable period. Failure to
do so adversely affects the employee in two ways – (1)
communication of entries makes him aware about the
assessment of his work and conduct by his superiors,
affording him an opportunity to improve his work in future;
(2) affords an opportunity of making a representation
against the entry which he feels is unjustified, enabling him
to seek revision/upgradation. Non-communication of entry
only smacks of arbitrariness, thus violating Article 14 of
Constitution of India.
Emphasis was laid on the need,
importance and significance of communicating such entries,
enabling the employee to seek redressal inter alia for
rectification thereof, in accordance with law, for giving a fair
chance and opportunity for promotional avenues.
In
particular, the Court held that:
“37. We further hold that when the entry is
communicated to him the public servant should
have a right to make a representation against the
entry to the concerned authority, and the authority
concerned must decide the representation in a fair
manner and within a reasonable period. We also
hold that the representation must be decided by
an authority higher than the one who gave the
entry, otherwise the likelihood is that the
representation will be summarily rejected without
adequate consideration as it would be an appeal
from Caesar to Caesar. All this would be conducive
to
fairness
and
transparency
in
public
administration, and would result in fairness to
public servants. The State must be a model
employer, and must act fairly towards its
employees. Only then would good governance be
possible.”
“41. In our opinion, non-communication of entries
in the Annual Confidential Report of a public
servant, whether he is in civil, judicial, police or
any other service (other than the military),
certainly has civil consequences because it may
affect his chances for promotion or get other
benefits (as already discussed above). Hence, such
non-communication would be arbitrary, and as
such violative of Article 14 of the Constitution.”
Apex Court in Central Public Information Officer,
10.
Supreme Court of India v. Subhash Chandra Agrawal, (2011)
1 SCC 496, while reiterating the settled principle of law that
Right to Information is an integral part of the fundamental
right to freedom of speech and expression guaranteed by
the Constitution; the Right to Information Act merely
recognizes the constitutional right of citizens to freedom
of speech and expression; independence of Judiciary
forms part of basic structure of the Constitution of India;
the independence of Judiciary and the fundamental right
to free speech and expression are of a great value and
both of them are required to be balanced, referred the
following questions for determination by a larger Bench:
“1. Whether the concept of independence of
the judiciary requires and demands the
prohibition of furnishing of the information
sought? Whether the information sought for
amounts to interference in the functioning of
the judiciary?
2. Whether the information sought for
cannot be furnished to avoid any erosion in
the credibility of the decisions and to ensure
a free and frank expression of honest opinion
by all the constitutional functionaries, which
is essential for effective consultation and for
taking the right decision?
3. Whether the information sought for is
exempt under Section 8(1)(j) of the Right to
Information Act?”
In Subhash Popatlal Dave v. Union of India and
11.
another, (2012) 7 SCC 533, the Court, however, has held
that the provisions of the Act cannot have a overriding
effect on the Constitution. Here, in the said case, Court was
dealing with the issue as to whether reasons could be
supplied to the detenu, in view of Article 22 of Constitution
of India.
12.
In view of settled position of law, as it stands
now, in our considered view, no fault can be found with the
impugned order dated 24.10.2011 (Annexure P-5), passed
by the Information Commissioner. There is neither any
illegality nor any perversity.
13.
It is urged by Ms Devyani Sharma, learned
counsel for the petitioner-Bank that these petitions be kept
pending, as the apex Court, in Civil Appeal No.2872 of 2010,
titled as Union of India v. A.K. Goel & others, has left the
issue of date of applicability of law laid down by the apex
Court in Dev Dutt and Sukhdev (supra) open. In effect, what
is contended is that till such time the issue is decided by the
apex Court, these petitions be adjourned sine die.
Here we may observe that there is no bar under
14.
the Act, against the information being supplied by the
appropriate authority, in relation to acts or events which
have occurred and stand recorded prior to the Act being
notified in the year 2005. We may also observe that the Act
was enacted to provide for setting out the practical regime
of right to information for citizens to secure access to
information under the control of public authorities, in order
to promote transparency and accountability in the working
of every public authority.
The Preamble specifically takes
note of the fact that the Democratic Republic established by
the Constitution of India, requires an informed citizenry and
transparency of information, vital for its functioning, not
only to contain corruption, but also hold Governments and
their instrumentalities accountable to the governed.
The
conflicting interest between the Government and the
citizenry,
while
preserving
the
paramountcy
of
the
democratic ideal, stands considered.
15.
Section 2(f) of the Act defines “information” to
mean:-
“any form, including records, documents,
memos, e-mails, opinions, advices, press
releases, circulars, orders, logbooks, contracts,
reports, papers, samples, models, data material
hold in any electronic form and information
relating to any private body which can be
accessed by a public authority under any other
law for the time being in force”;
16.
“Right to information” as defined under Section
2(j) reads thus:
“2(j) “right to information” means the right to
information accessible under this Act which is
held by or under the control of any public
authority and includes the right to –
inspection of work, documents, records;
b. taking notes, extracts, or certified
copies of documents or records;
c. taking certified samples of material;
d. obtaining information in the form of
diskettes,
floppies,
tapes,
video
cassettes or in any other electronic
mode or through printouts where such
information is stored in a computer or in
any other device.”
a.
17.
“Record”
includes
any
document
and
file.
Neither the definition clause, nor any provision of the Act
postulates that information, prior to enforcement of the Act,
cannot be supplied to a citizen. The only fetters prescribed
are under Sections 8, 9, 11 and 24 of the Act. Even here no
bar is provided for supplying information recorded prior to
the enactment. In fact, Section 6 of the Act empowers the
citizens to seek information and Section 7 casts a duty and
obligation upon the prescribed authorities to furnish the
same, except where it cannot be so done, and that too on
limited grounds and for assigned reasons.
18.
In Secretary General, Supreme Court of India v.
Subhash Chandra Agarwal, AIR 2010 Delhi 159 (Full Bench),
the Court held as under:
“The source of right to information does not
emanate from the right to Information Act. It is a
right that emerges from the constitutional
guarantees under Article 19(1)(a) of Constitution
of India. The Right to information Act is not
repository of the right to information.
Its
repository is the constitutional rights guaranteed
under Article 19(1)(a).
The Act is merely an
instrument that lays down statutory procedure in
the exercise of this right. Its overreaching purpose
is to facilitate democracy by helping to ensure that
citizens have the information required to
participate meaningfully in the democratic process
and to help the governors accountable to the
governed. In construing such a statute the Court
ought to give to it widest operation which its
language will permit. The Court will also not
readily read words which are not there and
introduction of which will restrict the rights of
citizens for whose benefit the statute is intended.”
Section 8(3) of the Act specifically provides that
19.
information relating to any occurrence, event or matter,
which has taken place, occurred or happened 20 years
before the date on which any request is made under Section
6 shall be provided to any person making a request under
this Section.
20.
Though, in a totally different context, the apex
Court in Khanapuram Gandaiah v. Administrative Officer and
others, (2010) 2 SCC 1, while interpreting definition of
“information”, held that an applicant under Section 6 of the
Act can get any information, which is in existence and
accessible to public authority under law. He is entitled to
get all opinions, advices, circulars, etc., but cannot ask for
information as to why the same were issued/passed, more
so in matters pertaining to judicial decisions.
21.
The object of the Act is to bring transparency
and accountability in the working of public authorities. The
Act confers a right on the citizens to access information
from the public authority, which is obliged to facilitate this
It is a constitutional right.
Law with regard to
right.
principles of natural justice, fairness and transparency in
public administration has evolved manifold.
All entries in
the ACRs of a civil public servant must be communicated.
Information supplied would only be conducive for fairness
and transparency in public administration resulting in
fairness to public servants. If transparency is to be brought
in and public servants are to be held accountable, in the
working of public authorities, disclosure of ACRs to the
concerned employee cannot be denied.
The
apex
Court
in
Chief
Information
22.
Commissioner and another v. State of Manipur and another,
AIR 2012 SC 864, after taking into account its earlier
rendered
by
various
Benches,
including
decisions
Constitution Bench, in People’s Union for Civil Liberties and
another v. Union of India and others, (2004) 2 SCC 476;
Dinesh Trivedi, M.P. and others v. Union of India and others,
(1997) 4 SCC 306; Secretary, Ministry of Information &
Broadcasting,
Govt.
of
India
and
others
v.
Cricket
Association of Bengal and others, (1995) 2 SCC 161;
Reliance Petrochemicals Ltd. v. Proprietors of Indian Express
Newspapers, Bombay Pvt. Ltd. and others, (1988) 4 SCC
592; S.P. Gupta & others v. President of India and others,
AIR 1982 SC 149 (Constitution Bench); and The State of
Uttar Pradesh v. Raj Narain and others, AIR 1975 SC 865
(Constitution Bench), held that:
“11. It is, therefore, clear from the ratio in the
above decisions of the Constitution Bench of this
Court that the right to information, which is
basically founded on the right to know, is an
intrinsic part of the fundamental right to free
speech and expression guaranteed under Article
19(1)(a) of the Constitution. The said Act was,
thus, enacted to consolidate the fundamental right
of free speech.”
“16. The exercise of judicial discretion in favour of
free speech is not only peculiar to our
jurisprudence, the same is a part of the
jurisprudence in all the countries which are
governed by rule of law with an independent
judiciary. In this connection, if we may quote what
Lord Acton said in one of his speeches:
"Everything secret degenerates, even the
administration of justice; nothing is safe that
does not show how it can bear discussion
and publicity"
23.
17. It is, therefore, clear that a society which
adopts openness as a value of overarching
significance not only permits its citizens a wide
range of freedom of expression, it also goes
further in actually opening up the deliberative
process of the Government itself to the sunlight of
public scrutiny.”
Right of privacy of a Government servant is of
the same order as that of a private individual.
Being a
fundamental right, such right is to be clearly protected
unless public interest warrants disclosure of information
with regard thereto. (See: Vijay Prakash v. Union of India
and others, AIR 2010 Delhi 7).
24.
In
the
instant
case,
applicant
is
seeking
information with reference to his ACRs, pertaining to
different period’s upto the year 2008. He apprehends that
he has been unfairly dealt with by the authorities. We see
no reason why entries recorded prior to the Act coming into
force be not supplied to the applicant. The Supreme Court
in Dev Dutt (supra) has only explained the position of law as
it stands on the date of enactment. It cannot be said that
the Act is to apply prospectively, for information recorded
after its enactment.
What is further argued is that there is fiduciary
relationship
between
25.
the
employer
and
the
rt
reporting/reviewing (1st & 2nd) authority and as such their
particulars cannot be disclosed.
26.
What is fiduciary relationship has not been
defined under the Act. Provisions of Section 8(1)(e)(g) &
(j), to which our attention was invited, for the sake of
convenience, better appreciation and ready reference, are
reproduced as under:
“8. Exemption from disclosure of information.
(1) Notwithstanding anything contained in this Act,
there shall be no obligation to give any citizen,-
(a) to (d)
(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;
(f)
(g) information, the disclosure of which
would endanger the life or physical safety of
any person or identify the source of
information or assistance given in confidence
for law enforcement or security purposes;
(h) & (i)
(j)
information which relates to personal
information the disclosure of which has no
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.
Term “fiduciary relationship”, in the context of
27.
the Act, stands considered by the apex Court in Central
Board of Secondary Education and another v. Aditya
Bandopadhyay and others, (2011) 8 SCC 497.
There the
Court was dealing with the issue as to whether an examinee
is entitled to inspect the evaluated answer sheets of a
public examination or take certified copies thereof and also
as to whether the examining body holds the examination
answer books in a fiduciary relationship and thus was under
no obligation to give inspection thereof.
The Court while
making the following observations held that the examining
body is not in any fiduciary relationship with respect to the
examiner and the evaluated answer books held by the
examining
body
are
not
by
virtue
of
any
fiduciary
relationship. The Court further held that:
“39. The term ‘fiduciary' refers to a person having
a duty to act for the benefit of another, showing
good faith and condour, where such other person
reposes trust and special confidence in the person
owing or discharging the duty. The term ‘fiduciary
relationship' is used to describe a situation or
transaction where one person (beneficiary) places
complete confidence in another person (fiduciary)
in regard to his affairs, business or transaction(s).
The term also refers to a person who holds a thing
in trust for another (beneficiary). The fiduciary is
expected to act in confidence and for the benefit
and advantage of the beneficiary, and use good
faith and fairness in dealing with the beneficiary or
the things belonging to the beneficiary. If the
beneficiary has entrusted anything to the
fiduciary, to hold the thing in trust or to execute
certain acts in regard to or with reference to the
entrusted thing, the fiduciary has to act in
confidence and expected not to disclose the thing
or information to any third party. ....................
41. In a philosophical and very wide sense,
examining bodies can be said to act in a fiduciary
capacity, with reference to students who
participate in an examination, as a government
does while governing its citizens or as the present
generation does with reference to the future
generation while preserving the environment. But
the words ‘information available to a person in his
fiduciary relationship' are used in section 8(1)(e) of
RTI Act in its normal and well recognized sense,
that is to refer to persons who act in a fiduciary
capacity, with reference to a specific beneficiary or
beneficiaries who are to be expected to be
protected or benefited by the actions of the
fiduciary - a trustee with reference to the
beneficiary of the trust, a guardian with reference
to a minor/physically/infirm/ mentally challenged,
a parent with reference to a child, a lawyer or a
chartered accountant with reference to a client, a
doctor or nurse with reference to a patient, an
agent with reference to a principal, a partner with
reference to another partner, a director of a
company with reference to a share-holder, an
executor with reference to a legatee, a receiver
with reference to the parties to a lis, an employer
with reference to the confidential information
relating to the employee, and an employee with
reference to business dealings/transaction of the
employer. We do not find that kind of fiduciary
relationship between the examining body and the
examinee, with reference to the evaluated answer-
books, that come into the custody of the
examining body.
42. The duty of examining bodies is to subject the
candidates who have completed a course of study
or a period of training in accordance with its
curricula,
to
a
process
of
verification/examination/testing
of
their
knowledge, ability or skill, or to ascertain whether
they can be said to have successfully completed or
passed the course of study or training. Other
specialized Examining Bodies may simply subject
candidates to a process of verification by an
examination, to find out whether such person is
suitable for a particular post, job or assignment. An
examining body, if it is a public authority entrusted
with public functions, is required to act fairly,
reasonably, uniformly and consistently for public
good and in public interest.”
(Emphasis supplied)
28.
To similar effect are the decisions of various
rt
Courts of land in Pritam Rooj v. University of Calcutta and
others, AIR 2008 Calcutta 118; University of Calcutta and
others v. Pritam Rooj, AIR 2009 Calcutta 97 (DB); Kawal
Singh Gautam v. State of Chhattisgarh and others, AIR 2011
Chhattisgarh 143; The Kerala Public Service Commission &
others v. State Information Commission, Kerala & another,
AIR 2011 Kerala 135 (DB), and Rajasthan Public Service
Commission v. Ms. Pooja Meena & another, AIR 2012
Rajasthan 52.
29.
The issue as to whether the examining body was
duty bound to disclose names of the members present in
the Interview Board or not was specifically considered by
the apex Court in Bihar Public Service Commission v. Saiyed
Hussain Abbas Rizwi and another, JT 2012(12) SC 552, and
the Court held that public interest would warrant not for
such disclosure as it would expose the examiners to danger
of life.
While doing so, they considered the observation
made in CBSE (supra). But significantly this is not the case
in hand.
In Union of India v. R.S. Khan, AIR 2011 Delhi 50,
30.
the Court held as under:
“10. The next submission to be dealt with is that
information contained in the files in the form of file
notings made by the different officials dealing with
the files during the course of disciplinary
proceedings against the Petitioner were available
to the Union of India in a ‘fiduciary relationship’
within the meaning of Section 8(1)(e) of the RTI
Act. This Court concurs with the view expressed by
the CIC that in the context of a government
servant performing official functions and making
notes on a file about the performance or conduct of
another officer, such noting cannot be said to be
given to the government pursuant to a ‘fiduciary
relationship’ with the government within the
meaning of Section 8(1)(e) of the RTI Act, 2005.
Section 8(1)(e) is, at best, a ground to deny
information to a third party on the ground that the
information sought concerns a government
servant, which information is available with the
government pursuant to a fiduciary relationship,
that such person, has with the government, as an
employee.
11. To illustrate, it will be no ground for the
Union of India to deny to an employee, against
whom the disciplinary proceedings are held, to
withhold the information available in the
government files about such employee on the
ground that such information has been given to it
by some other government official who made the
noting in a fiduciary relationship. This can be a
ground only to deny disclosure to a third party who
may be seeking information about the Petitioner in
relation to the disciplinary proceedings held
against her. The Union of India, can possibly argue
that in view of the fiduciary relationship between
the Petitioner and the Union of India it is not
obligatory for the Union of India to disclose the
information about her to a third party. This again
is not a blanket immunity against disclosure. In
terms of Section 8(1)(e) RTI Act, the Union of India
will have to demonstrate that there is no larger
public interest which warrants disclosure of such
information.
The need for the official facing
disciplinary inquiry to have to be provided with all
the material against such official has been
explained in the judgment of the Division Bench of
this Court in union of India v. L.K. Puri, 2008 151
DLT 669, as under:
“The principle of law, on the conjoint reading
of the two judgments, as aforesaid, would be that
in case there is such material, whether in the form
of comments/findings/ advise of UPSC/CVC or other
material on which the disciplinary authority acts
upon, it is necessary to supply the same to the
charge sheeted officer before relying thereupon
any imposing the punishment, major or minor,
inasmuch as cardinal principle of law is that one
cannot cat (sic: act) on material which is neither
supplied nor shown to the delinquent official.
Otherwise, such advice of UPSC can be furnished
to the Government servant along with the copy of
the penalty order as well as per Rule 32 of the
CCS(CCA) Rules.””
In our considered view, fiduciary relationship, if
31.
at all, is between the employer and employee. Information,
which is accepted to be kept exempt from disclosure, is the
information concerning the employee.
Acceptance of
petitioner’s contention would lead to doing violence to the
statutory provisions, its ambit and scope. The exemption is
from disclosure to a third party and not to the employee. In
fact, as explained in Dev Dutt (supra), if the intention of
making adverse entries, in the ACRs of an employee, is to
improve his performance, then the purpose is not achieved
by keeping the information secret from him. Unless adverse
entry is communicated to the employee and he is allowed to
explain his position, the exercise of getting improved his
performance would not be achieved. Cases of error, malice,
act of arbitrariness and unreasonableness cannot be ruled
out.
An employee, as a part of good governance, must
know who his reporting and accepting authority is. In fact,
it is not a trade secret at all. It is known to all within the
organization.
Disclosure of their names, in no manner,
would jeopardize their relationship either with the employee
or with the employer. There is no question of compromise
of any confidentiality in adopting such a practice. There is
no threat to life of any person. There is also no question of
invasion of privacy.
Information relating to posting, transfer and
32.
promotion of clerical staff of a Public Sector Undertaking
(Bank) does not pertain to any fiduciary relationship of the
bank vis-à-vis its employees, within the dictionary meaning
of the word “fiduciary”.
Also, such information cannot be
said to be held in trust by the employer on behalf of its
employees. (See: Canara Bank v. The Central Information
Commission, Delhi and another, AIR 2007 Kerala 225).
Information relating to third party, cannot be
33.
disclosed, even in public interest, without disclosing and
affording opportunity to the concerned. {See: Centre for
Development of Advanced Computing v. Brig. (Retd.) Ujjal
Dasgupta and another, AIR 2010 Delhi 132; and Arvind
Kejriwal v. Central Public Information Officer & another, AIR
2012 Delhi 29}.
34.
An
applicant
is
entitled
for
information,
prescribing the criteria and the marks allotted under
different heads for giving employment to public servants.
{See: Haryana Public Service Commission, Chandigarh v.
State Information Commission and another, AIR 2009 Punjab
& Haryana 14(DB)}.
supply
of
record,
which
may
be
The Act does not impose fetters with regard to
voluminous.
(See:
35.
Surupsingh Harya Naik v. State of Maharashtra, AIR 2007
36.
Bombay 121).
Right of a citizen to seek information emanates
from Section 6 of the Act. He need not assign any reasons
for seeking such information. {See: Surupsingh Harya Naik
v. State of Maharashtra, AIR 2007 Bombay 121; and Saiyed
Hussain Abbas Rizwi v. State Information Commission, Patna
and others, AIR 2011 Patna 103(DB)}.
38.
No other point urged.
37.
Thus, we are of the considered view that not
only an employee has constitutional and statutory right to
obtain information sought for, but also petitioners have a
corresponding legal duty to disclose the same.
In view of the aforesaid discussion, the present
petitions only merit dismissal and are hereby dismissed, so
also pending application(s), if any.
( Sanjay Karol ),
Judge.
March 1, 2014(sd)
( V.K. Sharma ),
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