Information regarding the loan of M/s Kingfisher Airlines was denied u/s 8(1)(d) - CIC: the proviso ‘information which cannot be denied to the Parliament shall not be denied to any person’, applies only to sub Section (j) of Section 8(1) of the RTI Act
3 Jun, 2014Information regarding the loan of M/s Kingfisher Airlines and copy of remittance made for the purchase of Aircraft was denied u/s 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; - Appellant also sought the copy of the collaterals given, initiatives taken to recover the loan of Rs. 55 crore, steps taken by bank to fine tune its due diligence mechanism etc. - Appellant: information regarding loans going “bad/bust/NPA” has to be disclosed as public interest - CIC: the proviso ‘information which cannot be denied to the Parliament shall not be denied to any person’, applies only to sub Section (j) of Section 8(1) of the RTI Act
Facts
This matter pertains to an RTI application filed by the appellant on 09/11/2012, seeking information on the following 7 points: –
“1) Kindly provide the copy/ies of file in which the loan of M/s Kingfisher Airlines was processed by your Bank.
2) Kindly provide the information about the status of the above mentioned loan as on date along with relevant data.
3) Kindly provide copy of the circular which felicitates the loan to be Standard if the interest is serviced till the expiry of last quarter irrespective of the conditions of the loan.
4) Kindly provide the copy of remittance made to Air bus Industries or any other entity by OBC being the advance / booking amount for purchase of Aircraft by M/s King Fisher Airlines India.
5) Kindly provide the copy/ies of initiatives taken by OBC to recover this loan of Rs. 55 crore or so which was lent to M/s King Fisher Airlines to buy Aircrafts.
6) Kindly also provide the copy of the guarantees / collaterals given by M/s Kingfisher Airlines, India to cover the Oriental Bank of Commerce exposure of Rs. 55 crore or whatever the amount / Non Fund Based Loan / advance given to M/s Kingfisher Airlines, India.
7) Kindly provide the copy/ies of steps taken including relevant data of fine tune its due diligence mechanism to avert the ups and downs such as the one happened with the loan advanced to M/s King Fisher Airlines India.”
2. The CPIO responded on 22.12.2012 and gave the following replies: –
“1. Information sought can not be provided being held in commercial confidence hence exempted from disclosure under section 8 (1) (d) of the RTI Act 2005.
2. Account is Standard (SMA) as on 30.09.2012.
3. We are following RBI guidelines regarding Income Recognition & Asset Classification pertaining to Advances as circulated vide “the master circular dated 02July2012”. The copy of the same is available on RBI website (https://www.rbi.org.in).
4. Same as point 1 above.
5. Bank is taking all necessary measures to safeguard our interest.
6. Primary security Assignment of Purchase agreement signed with Airbus SAS Industries. Collateral security – Corporate guarantee of UB holdings Ltd.
7. Risk Management system of the bank takes care of such eventualities.”
3. Not satisfied with the reply of the CPIO, the appellant filed an appeal to the First Appellate Authority on 04/01/2013. In his order dated 18/02/2013, the FAA upheld the reply given by the CPIO. He stated that the Kingfisher Airlines is a customer of the bank and any information provided by the company for availing loan and copies of remittances made to Airbus Industries as advance/booking amount, is of commercial confidence and held by the bank in fiduciary capacity. He further stated that in view of the foregoing, copies of the file in which the loan was processed and remittances made is an exempted information and invocation of section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; by the CPIO is in order. With regard to the contention of the Appellant that information which cannot be denied to Parliament has to be provided to the RTI applicant, the FAA stated that the above proviso is sub section specific and not a general proviso under Section 8 of the RTI Act. The FAA also stated that since the CPIO had not sought exemption under the relevant section of the RTI Act, the above proviso was not applicable in this case.
4. The Appellant approached the CIC in second appeal on 23.04.2013. In this appeal, he stated, inter alia, that the CPIO had erred in not providing information on points number 1 and 4 of the RTI application by claiming exemption under section 8 (1) (d) of the RTI Act, whereas the CIC has held in a number of decisions that information regarding loans going “bad/bust/NPA” has to be disclosed as “public interest” is involved. The Appellant further stated that the information sought as per points number 1 and 4 is whether the public funds are properly safeguarded by way of adequate securities/collateral of loan extended to the company. The Appellant has also drawn the attention of the Commission to the proviso in Section 8 of the RTI Act, which stipulates that any information which cannot be denied to Parliament has to be provided to RTI applicants. He has prayed that instructions be given to the CPIO and the FAA to provide the information sought as per points number 1 to 4 of the RTI application. He has further stated that by not providing the asked for information, the CPIO and the FAA have invited action under Section 20 (1) and (2) of the RTI Act. The Appellant prays for such action.
5. We heard the submissions of the Appellant and the Respondents. The Appellant stated that since public money is involved in this case, the information sought by him should be disclosed. In this context, he challenged the invocation of Section 8 (1) (d) by the Respondents. He also drew our attention to the Commission’s order number CIC/SM/A/2010/001381/SS dated 26.05.2011. He further stated that the Commission has been ordering disclosure of information in cases of One Time Settlements also.
6. The Respondents, on the other hand, reiterated the replies already given by them to the Appellant. They also stated that at the time of filing of the RTI application, the loan account in question was not NPA, but ‘Standard (SMA)’, even though it has now become NPA. They stated that all measures are being taken to recover the amount of the loan and the matter is pending in High Court. They further submitted that the information sought by the Appellant in points No. 1 and 4 of the RTI application is third party information, which they hold as commercial confidence and that no larger public interest had been established for its disclosure.
7. The Appellant stated that in its decisions, including the decision dated 26.5.2011 mentioned above, the Commission has held that information regarding irregularities, frauds and financial losses in a bank cannot be denied to the information seeker under any of the provisions of the RTI Act.
8. We have carefully considered the records and the submissions made before us. We note that the Appellant has prayed for direction to the Respondents to provide the information sought as per points No. 1 to 4 of the RTI application. We note that the Respondents have already provided information on point No. 3 and some information on point No. 2. As regards the information sought as per points No. 1 and 4 of the RTI application, we note that it is held by the bank as a matter of commercial confidence and is, therefore, covered by Section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; of the RTI Act. The Appellant has argued that larger public interest is involved in this case and has referred to decisions of the Commission regarding disclosure of information in cases of irregularities, frauds and financial losses; as well as cases of One Time Settlement. In the above context, we note that the Commission has been ordering disclosure of only limited information, concerning the total amount outstanding and the amount of One Time Settlement, in cases of One Time Settlement. We have also perused the Commission’s order No. CIC/SM/A/2010/001381/SS dated 26.5.2011 in which the Commission had ordered disclosure of inspection reports showing irregularities, frauds and financial losses in the Respondent Bank in that case, but with the stipulation that the Respondents may use the severability clause under Section 10 to sever any portions containing personal information / information exempted from disclosure. The request for information in the instant case is for copies of the files in which the loan was processed by the bank; as well as copies of remittances made from the account to Airbus Industries. The Commission’s order dated 26.5.2011 is not completely germane to this case as the information in that case did not pertain to the loan of a specific third party, but to a general inspection report, which was ordered to be disclosed after applying the severability clause under Section 10.
9. With regard to the submission of the Appellant concerning the proviso in Section 8, which states that information which cannot be denied to the Parliament shall not be denied to any person, we note that it applies only to sub Section (j) of Section 8 (1) of the RTI Act. In this context, the High Court of Delhi in its judgment in Writ Petition (Civil) NOS. 8396/2009, 16907/2006, 4788/2008, 9914/2009, 6085/2008, 7304/2007,7930/2009 AND 3607 of 2007 has observed the following:
“The proviso below Section 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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. of the RTI Act was subject of arguments. The said proviso was considered by the Bombay High Court in Surup Singh Hryanaik versus State of Maharashtra AIR 2007 Bom. 121 and it was held that it is proviso to the said subsection and not to the entire Section 8(1). The punctuation marks support the said interpretation of Bombay High Court. On a careful reading of Section 8(1), it becomes clear that the exemptions contained in the clauses (a) to (i) end with a semi colon “;” after each such clause which indicate that they are independent clauses. Substantive sub section Clause (j) however, ends with a colon “:” followed by the proviso. Immediately following the colon mark is the proviso in question which ends with a full stop “.”. In Principles of Statutory Interpretation, 11th Ed. 2008 (at page No. 169) G.P Singh, has noted that “If a statute in question is found to be carefully punctuated, punctuation, though a minor element, may be resorted to for purposes of construction.” Punctuation marks can in some cases serve as a useful guide and can be resorted to for interpreting a statute.”
10. In the light of the foregoing, we would not interfere with most of the replies given by the Respondents. However, we direct the CPIO to inform the Appellant, in response to point No. 2 of his RTI application, about the total amount outstanding in the loan account in question. The CPIO is further directed to do so within fifteen days of the receipt of this order, under intimation to the Commission.
11. With regard to the Appellant’s prayer for action against the CPIO and the FAA under Section 20(1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees: Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be. and (2) of the RTI Act, we note that the above Section has no provision for action against FAA. Further, we see no ground to take action against the CPIO under the above Section.
12. With the above directions and observations, the appeal is disposed of.
13. Copies of this order be given free of cost to the parties.
(Sharat Sabharwal)
Information Commissioner
Citation: Sh. Harinder Dhingra v. Oriental Bank of Commerce in File No. CIC/VS/A/2013/000664