2015 (2) TMI 123 - HC - Indian Laws

Scope of RTI Act - 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 - Held that - 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 (2008 (5) TMI 632 - SUPREME COURT) 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 the employer and the reporting/reviewing (1st & 2nd) authority and as such their particulars cannot be disclosed. Term fiduciary relationship , in the context of the Act, stands context of the Act, stands considered by the apex Court in Central Board of Secondary Education and Another v. Aditya Bandopadhyay and Others, 2011 (8) TMI 538 - SUPREME COURT OF INDIA . 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. Fiduciary relationship, if 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 (2008 (5) TMI 632 - SUPREME COURT), 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 promotion of clerical staff,a Public Sector Undertaking (Bank) does not pertain to any fiduciary relationship of the bank vis-a 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. - Information relating to third party, cannot be disclosed, even in public interest, without disclosing and affording opportunity to the concerned. - An applicant is entitled for information, prescribing the criteria and the marks allotted under different heads for giving employment to public servants - The Act does not impose fetters with regard to supply of record, which may be voluminous - Right of a citizen to seek information emanates from Section 6 of the Act. He need not assign any reasons for seeking such information - 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. - Decided against Petitioner.

Summary

Issues Involved:
1. Disclosure of the names of the Reporting, First and Second Review/Accepting Authority under the Right to Information Act, 2005.
2. Applicability of fiduciary relationship exemption under Section 8(1)(e) and (g) of the RTI Act.
3. Non-communication of entries in the Annual Confidential Reports (ACRs) and its impact on the employee's rights.

Issue-wise Detailed Analysis:

1. Disclosure of the Names of the Authorities:
The primary issue was whether the names of the Reporting, First and Second Review/Accepting Authority, authors of the ACRs of the respondent, could be disclosed under the RTI Act. The court concluded that there was no bar under the RTI Act against the information being supplied by the appropriate authority, even if the information pertained to periods before the RTI Act was enacted. The court emphasized that the Act was designed to promote transparency and accountability in public authorities' operations, and the right to information is a constitutional right under Article 19(1)(a).

2. Applicability of Fiduciary Relationship Exemption:
The petitioner-Bank argued that the information sought was exempt under Section 8(1)(e) and (g) of the RTI Act due to a fiduciary relationship. The court clarified that the fiduciary relationship, if any, is between the employer and the employee, and the information concerning the employee is exempt from disclosure to third parties, not to the employee himself. The court referred to the case of Central Board of Secondary Education v. Aditya Bandopadhyay, which defined fiduciary relationships and concluded that the relationship between the employer and the employee regarding ACRs does not fall under the fiduciary relationship as contemplated by the RTI Act.

3. Non-communication of Entries in ACRs:
The court highlighted the legal position established in Dev Dutt v. Union of India, which mandates that every entry in the ACRs of a public servant must be communicated to the individual within a reasonable period. Non-communication of such entries was deemed arbitrary and violative of Article 14 of the Constitution. The court reiterated that communication of ACR entries serves multiple purposes, including allowing the employee to improve performance and make representations against unjustified entries. The court also referenced Sukhdev Singh v. Union of India, which upheld the necessity of communicating all ACR entries to ensure fairness and transparency.

Conclusion:
The court dismissed the petitions, affirming that the employee has a constitutional and statutory right to obtain the information sought. The court found no merit in the argument that the information should not be disclosed due to a fiduciary relationship or other exemptions under the RTI Act. The petitions were dismissed, and the Information Commissioner's order directing the disclosure of the information was upheld. The court emphasized the importance of transparency and accountability in public administration and the right of employees to be informed about their ACRs to ensure fairness and improve performance.