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TMI Blog2012 (11) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... of the other two respondents, Col P.P. Singh and Brig. S. Sabharwal who have put in appearances occasionally. In particular, they were absent on the last two dates of hearing when matters were heard at length and the judgment was reserved in the matters. Nevertheless, it appears that, the said officers have adopted and are in sync, with the submissions made by Col. V.K. Shad. 1.2 The orders impugned in each of the captured writ petitions were those passed by the Central Information Commission (in short CIC). In WP(C) 499/2012, two orders are impugned. The principal order being order dated 15.06.2011, followed by a consequential order, dated 13.12.2011. 1.3 In WP(C) 1138/2012, there are, once again, two orders, which are impugned. The first order impugned is, the principal order, which is, dated 04.11.2011. This order follows the decision taken by the CIC in Col. V.K. Shad's case. The second order is dated 05.01.2012, which actually, only records, the fact that the matter had been concluded by the order dated 4.11.2011, and that the registry of the CIC had mistakenly relisted the matter. The order however, also goes on to record the fact that, a written representation was submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers to officers; non-payment of mess bills; and purchase of pickle from officer's mess fund for personal use. 3.4 The Court Of Inquiry concluded its proceedings in August, 2009. The opinion of the Court Of Inquiry was as follows: "....(a) No case of financial misappropriation or malafide intention on part of IC-48682N Co. VK Shad, CO 5682 ASC Bn has been ascertained by the court. (b) Actions taken by Col VK Shad, CO 5682 ASC Bn in all the cases examined by the court, though at places not strictly as per laid down procedures, are on issues pertaining to routine day to day functioning of the unit and did not have any serious ramifications or resulted in any gross violation/ deviation from the accepted norms. (c) IC-46873K Lt. Col BS Goraya, 2IC, 5682 ASC Bn has apparently got into a personality clash with the CO, Vol. V.K. Shad. In the bargain, the former has attempted to polarize the Unit and in effect adversely affected the day to day functioning of the unit in gen and the CO in particular. (d) All issues which the court examined were of routine/ mundane nature and could have been resolved in the departmental channel itself. 2. The court recommends that:- (a) IC 48682N Col V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings of the C of I convened by the convening order ref in para 1 above. (b) Recommendations on file of staff at various HQs. (c) Recommendations of Cdrs in chain of comd. (d) Directions of the GOC-in-C on the subject inquiry. (e) Copies of all letters written by Lt. Col. B.S. Goraya where he has leveled allegations against me to HQ Western Command including those written to HQ Corps and HQ PH & HP(1) Sub Area till date. I may also be info of action taken, if any, against Lt Col BS Goraya for his numerous acts of indiscipline." 5. The PIO, vide communication dated 29.9.2010, declined to give any information. The said communication, however, did indicate that under Army Rule 184 (Amended), the statement of exhibits of the Court Of Inquiry proceedings are made available to those persons whose character and military reputation is in issue in the proceedings before the Court Of Inquiry. The officer was advised by the said communication to apply accordingly. 6. Being aggrieved, Col. V.K. Shad, approached the first appellate authority. The first appellate authority agreed with the view taken by the PIO except, with regard to, the denial of access to letters written by Lt. Col. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.2.2012. 8.4 It is in this background that writ petition 499/2012, was moved in this court, on 24.01.2012 when, the impugned orders in so far as it directed provision of the opinion of the JAG branch, was stayed. WP(C) No. 1138/2012 9. In this case a Court Of Inquiry was ordered by the Head Quarter Central Command, to investigate circumstances in which, one (1) rifle 5.56 mm INSAS alongwith one (1) magazine and 40 (forty) cartridges, SAS 5.56 mm Ball INSAS, from 40 Company ASC (Sup) Type 'D', was lost on the night of 14/15 January, 2006 and thereafter, recovered on 18.01.2006. 9.1 On the conclusion of the Court Of Inquiry, the proceedings, the findings as also the recommendations as in the first case, were finally placed before the GOC-in-Chief, Central Command, who came to the conclusion that administrative action was imperative against Col. P.P. Singh, for his failure to supervise the duties which were required to be performed by his subordinates and, in ensuring, the safe custody of weapons, taken on charge, by his unit, contrary to the provisions of para 37(c) of the Regulations For The Army 1987 (Revised) and para 193 of the Military Security Instructions, 2001. 9.2 Bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 9.7 As noticed above, though Col. P.P. Singh's appeal before the CIC was disposed on 4.5.2011, it got listed again on 5.1.2012, on which date thirty (30) days were sought on behalf of the petitioners, to comply with the order of the CIC. WP(C) No. 1144/2012 10. On 5.12.2009, a Court Of Inquiry was ordered by the Head Quarters Western Command to investigate the alleged irregularities, in the procurement of shoes, as part of personal kit stores item for Indian troops, proceedings on a United Nation's assignment, during the period January, 2006 till the date of issuance of the convening order. 10.1 The Court Of Inquiry, evidently, found Brig. S. Sabharwal guilty of certain lapses alongwith four officers of the Ordinance Services Directorate, Integrated Head Quarters, Ministry of Defence. Brig. S. Sabharwal's conduct was found blameworthy, in so far as, he had omitted to obtain formal written sanction of the Major General of the Ordinance prior to issuing orders to carry out a major amendment vis-a-vis the scope and composition of the board of officers, who were involved in the short-listing of eligible firms; and for omitting to comply with instructions, which required him to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinions generated in the case could not be given to Brig. S. Sabharwal in view of a "fiduciary relationship existing in the chain of command and staff processing the case". It was also observed by the PIO that the notings and contents of the classified files were exempt from disclosure under the provisions of the Department of Personnel and Training (in short DoPT) letter no. 1/20/2009-IR dated 23.6.2009, and that, no public interest would be served in disclosing the information sought for other than the applicant's own interest. 10.7 Being aggrieved, Brig. S. Sabharwal filed an appeal with the first appellate authority, on 12.1.2011. The first appellate authority rejected the appeal, which was conveyed under the cover of the letter dated 11.2.2011. To be noted, that even though, the letter dated 11.2.2011 is on record, the order of the first appellate authority has not been placed on record by the petitioners herein. 11. Brig. S. Sabharwal, being dissatisfied with result, filed a second appeal with the CIC. The CIC, passed a similar order, as was passed in the other two cases, whereby it directed that copy of file notings be supplied to Brig. S. Sabharwal after redacting the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the conduct of Court Of Inquiry are to be provided to the delinquent officers. It is contended that the directions contained in the impugned orders of the CIC, are contrary to the said Rule. 12.5 In order to buttress his submissions reliance was placed by Mr. Mehra, on the observations of the Supreme Court, in the case of Central Board of Secondary Education & Ors. vs Aditya Bandopadhayay & Ors. (2011) 8 SCC 497. A particular stress, was laid on the observations made in paragraphs 38, 39, 44, 45 and 63 of the said judgment. 13. On the other hand, the respondents in the captioned writ petitions, who were led by Col. V.K. Shad, contended to the contrary and relied upon the impugned orders of the CIC. Specific reliance was placed on the judgments of this court, in the case of, Maj. General Surender Kumar Sahni vs UOI & Ors in CW No. 415/2003 dated 09.04.2003 and The CPIO, Supreme Court of India vs Subhash Chandra Agarwal & Anr. WP(C) 288/2009 pronounced on 02.09.2009; and the judgment of the Supreme Court in the case of CBSE vs Aditya Bandopadhayay. REASONS 14. I have heard the learned ASG and the respondents in the writ petitions. As indicated at the very outset, the issue has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, required to be ascertained is: (i) whether the material with respect to which access is sought, is firstly, information within the meaning of the RTI Act? (ii) whether the information sought is from a public authority, which is amenable to the provisions of the RTI Act? (iii) whether the material to which access is sought (provided it is information within the meaning of the RTI Act and is in possession of an authority which comes within the meaning of the term public authority) falls within the exclusionary provisions contained in Section 8(1)(e) of the RTI Act? 15.5 In order to appreciate the width and scope of the aforementioned provision, one would also have to bear in mind the provisions of Sections 9, 10, 11 & 22 of the RTI Act. 16. In the present case, therefore, let me first examine whether file notings and opinion of the JAG branch would fall within the ambit of the provisions of the RTI Act. 16.1 Section 2(f), inter alia defines information to mean "any" "material" contained in any form including records, documents, memo, emails, opinions, advises, press releases, circulars, orders, log books, contracts, reports, papers, samples, models, data material held in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heart of the matter, as to whether the information sought, in the present case, falls in the exclusionary (1)(e) of Section 8 of the RTI Act. 16.7 It may be important to note that Section 3 of the RTI Act, is an omnibus provision, in a sense, it mandates that all citizens shall have right to information subject to the other provisions of the RTI Act. Therefore, unless the information is specifically excluded, it is required to be provided in the form in which it is available, unless: (i) it would disproportionately divert the resources of public authority or, (ii) would be detrimental to the safety and preservation of the record in question [See Section 7(9)] or, the provision of information sought would involve an infringement of copy right subsisting in a person other than the State (see Section 9). 16.8 One may also be faced with a situation where information sought is dovetailed with information which though falls within the exclusionary provisions referred to above, is severable. In such a situation, recourse can be taken to Section 10 of the RTI Act, which provides for severing that part of the information which is exempt from disclosure under the RTI Act, provided it ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and opinions, to my mind, fall within the ambit of the provisions of the RTI Act. The possessor of information being a public authority, i.e., the Indian Army it could only deny the information, to the seeker of information who are respondents in the present case, only if the information sought falls within the exceptions provided in Section 8 of the RTI Act; in the instant case protection is claimed under clause (1)(e) of Section 8. Therefore, the argument of the petitioners that the information can be denied under Army Rule, 184 or the DoPT instructions dated 23.06.2009 are completely untenable in view of the over-riding effect of the provisions of the RTI Act. Both the Rule and the DoPT instructions have to give way to the provisions of Section 22 of the RTI Act. The reason being that, they were in existence when the RTI Act was enacted by the Parliament and the legislature is presumed to have knowledge of existing legislation including subordinate legislation. The Rule and the instruction can, in this case, at best have the flavour of a subordinate legislation. The said subordinate legislation cannot be taken recourse to, in my opinion to nullify the provisions of the RTI Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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...." 17.8 Examples of certain relationships, where both parties act in a fiduciary capacity, while treating the other as beneficiary, are set out in paragraph 40 and 41 of the judgment. In paragraph 41 onwards the Court examined what would be the true scope of the expression "information available to a person in his capacity as fiduciary relationship", as used in Section 8(1)(e) of the RTI Act. In that context several fiduciary relationships were referred to like the one between a trustee and a beneficiary of a trust; a guardian with reference to a minor or, a physically infirm or mentally incapacitated person; a parent with reference to a child; a lawyer or a chartered accountant with reference to a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than the word 'public authority'. Therefore the exemption under Section 8(1)(e) is available not only in regard to information that is held by a public authority (in this case the examining body) in a fiduciary capacity, but also to any information that is given or made available by a public authority to anyone else for being held in a fiduciary relationship. In other words, anything given and taken in confidence expecting confidentiality to be maintained will be information available to a person in fiduciary relationship. As a consequence, it has to be held that the instructions and solutions to questions communicated by the examining body to the examiners, head-examiners and moderators, are information available to such persons in their fiduciary relationship and therefore exempted from disclosure under Section 8(1)(d) of RTI Act...." 19. The court also made clear in paragraph 26 of the judgment that there were ten categories of information which were exempt from Section 8 of the RTI Act. Out of the ten categories, six categories enjoyed absolute exemption. These being: those information, which fell in clauses (a), (b), (c), (f), (g) & (h) of Section 8(1) of the RTI Act, while i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is reposed, fiduciary relationship immediately springs into existence." [see Mrs. Nellie Wapshare v. Pierce Lasha & Co. Ltd. AIR 1960 Mad 410] 99. In Lyell v. Kennedy (1889) 14 AC 437, the Court explained that whenever two persons stand in such a situation that confidence is necessarily reposed by one in the other, there arises a presumption as to fiduciary relationship which grows naturally out of that confidence. Such a confidential situation may arise from a contract or by some gratuitous undertaking, or it may be upon previous request or undertaken without any authority. 100. In Dale & Carrington Invt. (P) Ltd. v. P.K. Prathaphan: (2005) 1 SCC 212 and Needle Industries (India) Ltd. v. Needle Industries Newey (India) Holding Ltd. (1981) 3 SCC 333, the Court held that the directors of the company owe fiduciary duty to its shareholders. In P.V. Sankara Kurup v. Leelavathy Nambier: (1994) 6 SCC 68, the Court held that an agent and power of attorney can be said to owe a fiduciary relationship to the principal. 101. Section 88 of the Indian Trusts Act requires a fiduciary not to gain an advantage of his position. Section 88 applies to a trustee, executor, partner, agent, director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or the opinions, would have to be, in one sense, the beneficiaries of the said information. In an institutional set up, it can hardly be argued that notes on file qua a personnel or an employee of an institution, such as the Army, whether vis-a-vis his performance or his conduct, in any manner, can benefit the person, who generates the note or renders an opinion. As a matter of fact, the person who generates the note or renders an opinion is presumed to be a person who is objective and not conflicted by virtue of his interest in the matter, on which, he is called upon to deliberate. If that position holds, then it can neither be argued nor can it be conceived that notes on file or opinions rendered in an institutional setup by one officer qua the working or conduct of another officer brings forth a fiduciary relationship. It is also not a relationship of the kind where both parties required the other to act in a fiduciary capacity by treating the other as a beneficiary. The examples of such situations are found say in a partnership firm where, each partner acts in fiduciary capacity qua the other partner(s). 20.4 If at all, a fiduciary relationship springs up in such like situat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 126 to 129 of the Evidence Act, 1872 is not to be confused with the present situation. The protection under the said provisions is accorded to a client with respect to his communication with his legal advisor made in confidence in the course of and for the purpose of his employment unless the client consents to its disclosure or, it is a communication made in furtherance of any illegal purpose. The institution i.e The Indian Army in the present case cannot by any stretch of imagination be categorized as a client. The legal professional privilege extends only to a barrister, pleader, attorney or Vakil. The persons who have generated opinions and/or the notings on the file in the present case do not fall in any of these categories. 23.1 Having regard to the above, I am of the view that the contentions of the petitioners that the information sought by the respondents (Messers V.K. Shad & Co.) under Section 8(1)(e) of the Act is exempt from disclosure, is a contention, which is misconceived and untenable. For instance, can the information in issue in the present case, denied to the Parliament and State Legislature. In my view it cannot be denied, therefore, the necessary c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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