From the above discussion, it may be seen that a fiduciary
relationship is one whereby a person places complete
confidence in another in regard to a particular transaction or his
general affairs or business.
Clearly then the relationship between a candidate and an examiner is
anything but fiduciary as in this relationship one person is under no duty to act
for the benefit of the other on the matters within the scope of the relationship.
The question then arises as to whether such information can be treated as
personal information qualifying for exemption, the disclosure of which
constitutes invasion of privacy, which is provided under Section 8 (1) (j). The
very first sentence of Section 8 (1) (j) reads as follows: -
(j)
Information which relates to personal information the disclosure of
which has no relationship to any public activity or interest.1’
In this case although the information can arguably be treated as
personal information, under no circumstances can information given for
participation in a public activity like a public examination be deemed to have
no relationship to such public activity.
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2009/000383 dated 26-3-2009
Right to Information Act 2005 – Section 19
Appellant: Ms. Pinki Ganeriwal
Respondent: Union Public Service Commission, (UPSC)
Decision announced 07.6.’10
FACTS
By an application of 12.9.2008 Ms. Pinki Ganeriwal of Brajrajnagar,
District Jharsuguda, Orissa applied to Ms. Neeta Prasad, Jt. Secretary
(Appointment), CPIO, UPSC seeking the following information:
“(a) Subject matter of information: -
Selection list of eleven number of Dy. Director of Mines Safety
(Mining) by UPSC in pursuance of ref. no. F.1. /287/2006/R-VI
contained in advertisement no. 08/03 (Employment News 28th
April-4th May 2007)
(b)
The period to which the information relates: -
Year 2008-2009
(c)
Specific details of information required: -
Please provide the seniority-cum-merit list of selected eleven
number of Dy. Director of Mines Safety (Mining) by UPSC in
pursuance of ref. no. of F.1./287/2006/R-VI contained in
advertisement no. 08/03 (Employment News 28th April-4th May
2007) for appointment in Director General of Mines Safety,
Dhanbad under Ministry of Labour and Employment, New Delhi.
The list should contain the details of date of birth, institution &
year of passing their graduation, field experience of company
and marks obtained in interview and caste of the candidate.
To this, appellant Ms. Pinki Ganeriwal received a response dated
29.9.2008 from CPIO Shri Ashok Mehta informing her as follows:-
“The recommendation in respect of all the 11 candidates has
been made to the Dep’t.. The list of selected candidates in
order of merit is enclosed herewith. The application dossiers
containing details of the recommended candidates have been
forwarded to the concerned Ministry along with the
recommendation letters. Accordingly, it is not possible to furnish
details.
In addition, it is mentioned that information desired by you i.e.
date of birth, institution & year of passing their graduation, field
experience of company and marks obtained in interview and
caste of the selected candidates are information’s relate to
personal information of candidates and disclosure of which has
1
no relationship to any public activity or interest or which would
cause unwarranted invasion of the privacy of the individual.
Moreover, no larger public interest justifies the disclosure of the
information’s and as such exempted under section 8 (1) (e) & (j)
of the RTI Act, 2005.”
Aggrieved, Ms. Pinki Ganeriwal moved an appeal before Shri Nuruddin
Ansari, Jt. Secretary, UPSC dated 12.10.2008 pleading as follows:-
“The learned CPIO has informed that disclosure of information
is exempted under section 8 (1) (e) & (j) of RTI Act, 2005, but
these information are general in nature and has no fiduciary
relationship in any way. This information meant for greater
Public Interest and transparency for mining fraternity. In
pursuant of proviso of section 8 (1)(j), it is mentioned, ‘provided
that the information which cannot be denied to the Parliament or
a State Legislature shall not be denied to any person.”
Upon this, Shri Nuruddin Ansari in his order of 31.10.2008 ruled as
follows:-
“The appellant in her original request had solicited seniority-
cum-merit list of selected eleven candidates for the posts of Dy.
Director of Mines Safety (Mining) in the Directorate. General of
Mines Safety, Ministry of Labour & Employment along with
details of those candidates i.e. date of birth, institution and year
of passing their graduation, field experience of company, marks
obtained in interview and caste of the candidates. The list of
selected candidates in order of merit has been provided to the
appellant by the CPIO. The CPIO vide his reply dated
29.9.2008 refused to disclose the personal details of those
selected candidates solicited by the appellant with reasons for
not sharing the information specifically referring the relevant
Sections of the RTI Act.”
This has brought the appellant to her second appeal before us with the
following prayer:
“1.
2.
3.
4.
The true information as applied or the PIO and FAA be
directed to submit an affidavit that the information as
sought can also not be provided to Parliament or State
Assembly if asked for.
The PIO and FAA above named be directed to
compensate your appellant for the cost of attending the
hearing before the Commission.
Penal action under section 20 (1) & (2) be initiated
against the CPIO.
In case CPIO fails to furnish the information then he
should be directed to file an affidavit on NJ Stamp Paper
recording the reasons thereof.”
2
The appeal was heard with arrangement for videoconferencing with
NIC Studio Brajrajnagar, Orissa on 7-6-2010. The following are present.
Respondents at CIC chambers
Shri Kamal Bhagat, Jt. Secretary (R-II)
Shri P. P. Halder, Dy. Secretary (R.V)
Although informed of the date and place of hearing through our notice
of 21-5-2010 appellant Ms. Pinki Ganeriwal opted not to be present. Shri P.
P. Halder, Dy. Secretary (R.V) submitted that the personal details of the
eleven candidates sought by Ms. Pinki Ganeriwal including the details of the
date of birth, institution & year of passing their graduation, field experience of
company and marks obtained in interview together with the caste of
candidate, have all been provided to the UPSC in confidence by the
candidates and, therefore qualified for exemption both under section 8 (1) (e)
& section 8 (1) (j). In support of this he presented a ruling of the year 2006 by
this Commission.
DECISION NOTICE
We now have a definite ruling of what constitutes a fiduciary
relationship in WP(C) 228/2009; CPIO Supreme Court of India vs. SC
Agrawal & Anr dated 2-9-2009.
In his judgment, Hon’ble Ravindra Bhat J
has discussed the concept of fiduciary relationship in some detail. The HC
ruling in the above case is as follows:
55. It is necessary to first discern what a fiduciary relationship is, since
the term has not been defined in the Act. In Bristol & West Building
Society v. Mathew [1998] Ch 1, the term “fiduciary”, was described as
under:
“A fiduciary is someone who has undertaken to act for
and on behalf of another in a particular matter in
circumstances which give rise to a relationship of trust
and confidence.”
Dale & Carrington Invt. (P) Ltd. v. P.K. Prathapan, (2005) 1 SCC 212
and Needle Industries (India) Ltd v. Needle Industries (Newey) India
Holding Ltd: 1981 (3) SCC 333 establish that Directors of a company
owe fiduciary duties to its shareholders. In P.V. Sankara Kurup v.
Leelavathy Nambiar, (1994) 6 SCC 68, the Supreme Court held that an
agent and power of attorney holder can be said to owe a fiduciary
relationship to the principal.
56. In a recent decision (Mr. Krishna Gopal Kakani v. Bank of Baroda
2008 (13) SCALE 160) the Supreme Court had to decide whether a
3
transaction resulted in a fiduciary relationship. Money was sought to be
recovered by the plaintiff, from a bank, who had moved the court for
auction of goods imported, and retained the proceeds; the trail court
overruled the objection to maintainability, stating that the bank held the
surplus (of the proceeds) in a fiduciary capacity. The High Court upset
the trial court’s findings, ruling that the bank did not act in a fiduciary
capacity. The Supreme Court affirmed the High Court’s findings. The
court noticed Section 88 of the Trusts Act, which reads as follows:
“Section 88. Advantage gained by fiduciary. - Where a
trustee, executor, partner, agent, director of a company,
legal advisor, or other person bound in a fiduciary
character to protect the interests of another person, by
availing himself of his character, gains for himself any
pecuniary advantage, or where any person so are, or
may be, adverse to those of such other person and
thereby gains for himself a pecuniary advantage, he must
hold for the benefit of such other person the advantage
so gained.”
Affirming the High Court’s findings that the bank did not owe a fiduciary
responsibility to the appellant, it was held by the Supreme Court, that:
“9. An analysis of this Section would show that the Bank,
to whom the money had been entrusted, was not in the
capacity set out in the provision itself. The question of
any fiduciary relationship therefore arising between the
two must therefore be ruled out. It bears reiteration that
there is no evidence to show that any trust had been
created with respect to the suit money.”
The following kinds of relationships may broadly be categorized as
“fiduciary”:
• Trustee/beneficiary (Section 88, Indian Trusts Act, 1882)
• Legal guardians / wards (Section 20, Guardians and
Wards Act, 1890)
• Lawyer/client;
• Executors and administrators / legatees and heirs
• Board of directors / company
• Liquidator/company
• Receivers, trustees in bankruptcy and assignees in
insolvency / creditors
• Doctor/patient
• Parent/child:
57. The Advanced Law Lexicon, 3rd Edition, 2005, defines fiduciary
relationship as
“a relationship in which one person is under a duty to act
for the benefit of the other on the matters within the
scope of the relationship....Fiduciary relationship usually
arise in one of the four situations (1) when one person
places trust in the faithful integrity of another, who is a
result gains superiority or influence over the first, (2)
when one person assumes control and responsibility over
4
another, (3) when one person has a duty to act or give
advice to another on matters falling within the scope of
the relationship, or (4) when there is specific relationship
that has traditionally be recognized as involving fiduciary
duties, as with a lawyer and a client, or a stockbroker and
a customer”
58. From the above discussion, it may be seen that a fiduciary
relationship is one whereby a person places complete
confidence in another in regard to a particular transaction or his
general affairs or business.
Clearly then the relationship between a candidate and an examiner is
anything but fiduciary as in this relationship one person is under no duty to act
for the benefit of the other on the matters within the scope of the relationship.
The question then arises as to whether such information can be treated as
personal information qualifying for exemption, the disclosure of which
constitutes invasion of privacy, which is provided under Section 8 (1) (j). The
very first sentence of Section 8 (1) (j) reads as follows: -
(j)
Information which relates to personal information the disclosure of
which has no relationship to any public activity or interest.1’
In this case although the information can arguably be treated as
personal information, under no circumstances can information given for
participation in a public activity like a public examination be deemed to have
no relationship to such public activity.
Shri Kamal Bhagat, Jt. Secretary, has argued that it is not the practice
in the UPSC to disclose interview results for those candidates as are not
selected. In this case, however, appellant Ms. Pinki Ganeriwal has asked for
information only regarding ‘selected’ candidates. This information which was
not received by the appellant on the ground taken by the CPIO, UPSC, will
now be provided to appellant Ms. Pinki Ganeriwal within 10 working days from
the date of receipt of this decision notice. The appeal is thus allowed. There
will be no costs, since appellant has not been compelled to travel to be heard,
and the responses of CPIO, although held to be inadequate, were made
according to the time mandated and as per CPIO’s genuine understanding of
the law, and therefore not liable to penalty
1
Underlined by us
5
Announced in the hearing. Notice of this decision be given free of cost to
the parties.
(Wajahat Habibullah)
Chief Information Commissioner
7-6-2010
Authenticated true copy. Additional copies of orders shall be supplied against
application and payment of the charges prescribed under the Act to the CPIO
of this Commission.
(Pankaj K.P. Shreyaskar)
Joint Registrar
7-6-2010
6
No comments:
Post a Comment