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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 ..... ame to a citizen, when approached, without the citizen having to give any reasons for seeking a disclosure. And in pursuit of this goal, the seeker of information, apart from giving his contact details for the purposes of dispatch of information, is exempted from disclosing his personal details as per Section 6(2). Thus notes on files and opinions 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. 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. First proviso of Section 8(1), which categorically states that no information will be denied to any person, which cannot be denied to the Parliament or the State Legislature. Similarly, sub-section (2) of Section 8, empowers the public authority to over-ride the Official Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowed 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 submitted on behalf of the petitioners herein that, they be given, thirty (30) days time to comply with the order of the CIC. 1.4 In the third and last writ petition being: WP(C) 1144/2012, the order impugned is dated 9.6.2011. 1.5 In each of these matters, the impugned orders have been passed by the same Chief Information Commissioner. 2. Though the question of law is common, for the sake of completeness, I propose to briefly touch upon the relevant facts involved in each of the matters, which led to institution of the instant writ petitions. 2.1 For the sake of convenience, however, each of the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 K Shad, CO 5682 Bn (MT) should be suitably counselled for lapses in laid down procedures with reference to the issues of "sale of BPL Watches", "acceptance of sponsorship money from CSD Liquor Vendors" and "Functioning of AWWA Venture Shop, Chandimandir". (b) IC-46873K Lt. Col B S Goraya, 2IC 5682 ASC Bn (MT) is recommended to be posted out of the Unit forthwith as the presence of the offr in the Bn as 2IC, is detrimental to the administrative and operational efficiency of the Bn. (c) Suitable Disciplinary/administrative action be initiated against IC-46873K Lt Col BS Goraya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 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.S. Goraya to the Head Quarters, Western Command including those written to Head Quarter 2 Corps and Head Quarters PH HP (1) Sub Area. The rationale employed by the first appellate authority was that once investigation were over, copies of letters written by Lt. Goraya uptil March, 2010 could be provided to Col. V.K. Shad. In addition to the above, a further direction was issued, which was, to inform Col. V.K. Shad as regards the action, if any, initiated, against Lt. Col. B.S. Goraya. 7. Not being satisfied, Col. V.K. Shad, approached the CIC. The CIC, vide orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 Based on the directions of the GOC-in-Chief, a show cause notice was issued to Col. P.P. Singh, on 28.10.2006. After perusing the reply of Col. P.P. Singh, and based on the record the GOC-in-Chief, Central Command directed that his severe displeasure (Recordable) be conveyed to Col. P.P. Singh. 9.3 It is in this background that Col. P.P. Singh also took recourse to the RTI Act, and sought, the following information vide his application dated 29.1.2011: (a) Findings and opinion of the Court alongwith recommendations of the Cdrs in chain and dirn of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary, 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 nominate an officer of the rank of brigadier who belonged to a Branch other than the Ordinance Branch, for inclusion in the price negotiation committee. It appears that Brig. S. Sabharwal had, contrary to the stipulated norms, nominated instead an officer of the rank of Major General attached to the Ordinance Services Directorate. 10.2 Based on the findings of the Court Of Inquiry, a show cause notice was issued to Brig. S. Sabharwal, on 10.04.2010, by the Head Quarters Western Command. Brig. S. Sabharwal, replied to the show cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 names and designations of the officers, who made the notings, in accordance with, the provisions of Section 10(1) of the RTI Act. SUBMISSIONS OF COUNSELS 12. In the background of the aforesaid facts, it has been argued by Mr Mehra, learned ASG, that the CIC in several cases, contrary to the decision in V.K. Shad's case, has taken the view that the file notings, which include legal opinions, need not be disclosed, as it may affect the outcome of the legal action instituted by the applicant/querist seeking the informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 been narrowed down to whether or not the file notings and the opinion of the JAG branch fall within the provisions of Section 8(1)(e) of the RTI Act. I may only note, even though the authorities below have fleetingly adverted to the provisions of Section 8(1)(h) of the RTI Act, the said aspect was neither pressed nor argued before me, by the learned ASG. The emphasis was only qua the provisions of Section 8(1)(e) of the RTI Act. The defence qua non-disclosure of information set up by the petitioners is thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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. Section 2(i) defines record as one which includes - any document, manuscript and file; (ii) any microfilm and facsimile copy of a document; (iii) reproduction of image or images embodied in such microfilm; and (iv) any other material produced by a computer or any other device. 16.2 A conjoint reading of Section 2(f) and 2(i) leaves no do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 can be reasonably severed from that which is not exempt. In other words, information which is not exempted but is otherwise reasonably severable, can be given access to a person making a request for grant of access to the same. 16.9 Section 11 deals with a situation where information available with a public authority which relates to or has been supplied by a third party, and is treated as confidential by that third party. In such an eventuality the PIO of the public authority is req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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. 17.4 Therefore, one would have to examine the provisions of Section 8(1)(e) of the RTI Act. The relevant parts of the said Section read as under: "8. Exemption from disclosure of information (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen xxxx xxxx xxxx (e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 client etc. After considering the matter at length, the Supreme Court came to the conclusion that there was no fiduciary relationship between the examining body and the examiner with reference to evaluated answer books. The court also examined the issue that if one were to assume that there was a fiduciary relationship between the examiner and the examining body, whether the exemption would operate vis-a-vis third parties. In paragraph 44 of the judgment, the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 information enumerated in clauses (d), (e) (j) of the very same Section enjoyed conditional exemption to the extent that the information was subject to over-riding power of the competent authority under the RTI Act in larger public interest, which could in a given case, direct disclosure of such information. Clause (i), the Supreme Court noted, was period specific in as much as under Sub-Section (3) such information could be provided if the event or matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 of a company, legal advisor or other persons bound in fiduciary capacity. Kinds of persons bound by fiduciary character are enumerated in Mr. M. Gandhi's book on "Equity, Trusts and Specific Relief" (2nd ed., Eastern Book Company) (1) Trustee, (2) Director of a company, (3) Partner, (4) Agent, (5) Executor, (6) Legal Adviser, (7) Manager of a joint family, (8) Parent and child, (9) Religious, medical and other advisers, (10) Guardia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nders 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 situation, it would be when a third party seeks information qua the performance or conduct of an employee. The institution, in such a case, which holds the information, would then have to determine as to whether such information ought to be revealed keeping in mind the competing public interest. If public interest so demands, information, even in such a situation, would have to be disclosed, though after taking into account the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 consequences of providing information to Messers V.K. Shad should follow. 24. The argument of the learned ASG that, the CIC had taken a diametrically opposite view in the other cases and hence the CIC ought to have referred the matter to a larger bench, does have weight. This objection ordinarily may have weighed with me but for the following reasons :- 24.1 First, the judgment of the CIC cited for this purpose i.e., Col. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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