Appellant sought information relating to disciplinary action at NTPC which culminated in infliction of major penalty - CIC: Furnish a list of documents submitted to the Board of Directors along with decision whereof the Appellant’s appeal was considered

Appellant submitted that he has been proceeded against departmentally by NTPC and the same culminated in infliction of major penalty - He sought information relating to documents submitted to the Board of Directors, deliberations made and the decisions taken by Board with respect to disciplinary action initiated against him - CIC: Furnish a list of documents submitted to the Board of Directors along with Board’s decision whereof the Appellant’s appeal was considered

Date of Decision : 18.01.2016

Information Sought:

The appellant sought information relating to documents submitted to the Board of Directors, deliberations made and the decisions taken by Board with respect to disciplinary action initiated against him.

Relevant facts emerging from hearing:

Both parties are present and heard. The appellant filed an RTI application on 18.12.2013 seeking the aforesaid information. CPIO vide letter dated 09.01.2014 denied the information invoking Section 8(1) (e) of the RTI Act. Not satisfied with the response of CPIO, appellant filed an appeal on 17.01.2014. FAA upheld the decision of CPIO. The Appellant submits that he has been proceeded against departmentally by NTPC and the same culminated in infliction of major penalty. It is the contention of Appellant that the Board of Directors had decided his appeal by a non reasoned order and in this backdrop the information sought is urgently required. The Appellant relies on the decision of this Commission in Rameshwar Lal Bagotia v. Rajasthan Drugs & Pharmaceuticals Ltd. (CIC/SS/A/2011/000340) to advance his contention. The CPIO submits that the information is held by NTPC under trust and same is protected under clause (e) of Section 8(1).

Decision:-

After hearing both parties and on perusal of record, the Commission observes that present situation is no longer res intergra in view of settled position of law. In The CPIO, Supreme Court of India Vs Subhash Chandra Agarwal and Anr.; MANU/DE/1926/2009, the Hon’ble High Court of Delhi opined 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. Mothew [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." ............................................................

 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 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.”

In Union of India (UOI) thr. Director, Ministry of Personnel, PG and Pension and Ors. Vs. Central Information Commission and Shri P.D. Khandelwal and Ors;

MANU/DE/3138/2009 the scope of term ‘fiduciary’ was explained as follows: “8. Fiduciary can be described as an arrangement expressly agreed to or at least consciously undertaken in which one party trusts, relies and depends upon another‘s judgment or counsel. Fiduciary relationships may be formal, informal, voluntary or involuntary. It is legal acceptance that there are ethical or moral relationships or duties in relationships which create rights and obligations. The fiduciary obligations may be created by a contract but they differ from contractual relationships for they can exist even without payment of consideration by the beneficiaries and unlike contractual duties and obligations, fiduciary obligations may not be readily tailored and modified to suit the parties. In a fiduciary relationship, the principal emphasis is on trust, and reliance, the fiduciary‘s superior power and corresponding dependence of the beneficiary on the fiduciary. It requires a dominant position, integrity and responsibility of the fiduciary to act in good faith and for the benefit of and to protect the beneficiary and not oneself.”

However, any relationship may espouse diverse obligations with varying degree of trust. Some functions or duties may involve acting under absolute trust /faith and others may not. For the purpose of exemption under clause (e) of Section 8(1) of the RTI Act, the state of relationship under scrutiny must encompass all elements of fiduciary relationship. A rigid classification of various relationships is not possible. For instance, the relationship of an attorney-client, agent-principal, testator-trustee, testator-executor, ward-guardian, customerbank, client-attorney, patient-doctor, partner-partner, stockholders (shareholders)-directors, etc. are broadly classified as fiduciary relationships.

A reference is made to clause (e) of Section 8(1) of the RTI Act, 2005.

“(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information”

The expression ‘information available to a person in his fiduciary relationship’ would operate only in those cases where the nature of relationship does not change its legal character. In general, a Director occupies a fiduciary position vis-a vis the Company. A Director is under an obligation to further the interests of the Company and hence, the information exchanged in fulfilment of such objective would be exempted from disclosure. But the moot question is whether all information enmasse, in course of such relationship would be exempt from disclosure? The obvious answer is no.

If contention advanced by CPIO is accepted, it would lead to undesirable results. The test of ‘character of relationship vis-a-vis information sought’ is the touchstone in such cases. When a Director or Board of Directors act as an statutory Appellate Authority over disciplinary matters of the organization, they partake character of a quasi judicial authority. While sitting in appeal, the Appellate Authority (Director) assumes a neutral position and obliged to dispense justice. While dealing with disciplinary proceedings, the position of Director stretches beyond the domain of ‘fiduciary relationship.’ Even otherwise, Appellant has a right to know the decision as well as the reasons thereof affecting him unfavourably. It is implicit in a disciplinary action to provide for reasons.

In his RTI application, Appellant has asked for the following information:

“Please supply me following information under the provisions of RTI Act, with reference to disciplinary action taken against me and punishment awarded to me: 1. What documents were submitted to the Board of Directors and what deliberations were made and exact wordings of decision taken by the Board. This happened during 2007-2008.”

In present appeal, disciplinary action culminated in infliction of a major penalty. The Board of Directors acting as Appellate Authority altered and lowered the punishment awarded. In the considered opinion of the Commission, disclosure of information is warranted. The Appellant is entitled to know as to what documents were submitted to the Appellate authority and their decision.

After hearing the parties and perusal of record, the Commission directs CPIO to furnish a list of documents submitted to the Board of Directors along with Board’s decision whereof the Appellant’s appeal was considered. Intra-board deliberations need not be disclosed. The information may be furnished free of cost within 2 weeks of receipt of this order. The appeal is disposed of accordingly.

(Yashovardhan Azad)

Information Commissioner

Citation: Shri Ashok Behari Lal v. NTPC in F.No. CIC/RM//2014/003098