TMI Blog2015 (2) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is as to 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, or not. 2. Applicant, who is presently posted as Manager (OSD) in the State Bank of India, The Mall, Shimla (hereinafter referred to as the Appropriate Authority), sought following information vide application dated 17-8-2010 (Annexure P-1) : (i) Whether cognizance was given to Self Appraisal submitted by the Reportee: Yes/No (ii) Name of Reporting Authority, Designation Grade Scale : (iii) Name of Reviewing Authority/Accepting Authority, Designation Grade Scale : (iv) Name of members of IInd Reviewing Authority/Accepting Authority, Designation Grade Scale. (v) Score awarded by the Reporting Authority Score reviewed by the Ist IInd Reviewing Authority/Accepting Authority in the following parameters. Sr No. Reporting Authority Ist Reviewing Authority/ Ist Accepti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provide information in respect of points (ii), (iii), (iv) and (vi) to the appellant. Information in respect of (v) has already been furnished to the appellant. In our view there appears to have been a misreading of section 8(1)(3) of the Act by the CPIO and the first appellate authority. The fiduciary relationship, if at all, is between the employer and employee. The information which is expected to be kept exempt from disclosure is the information concerning the employee, in this case, the appellant herein. The exemption is from disclosure to third party and certainly not to the appellant himself. 5. The second Appellate Authority disposed of his appeals by a common order, which stands assailed by way of separate petitions. Since common questions are involved, these petitions are being disposed of by a common judgment. We have narrated the facts of the first writ petition. 6. It is not in dispute that applicant is seeking information from the appropriate authority with regard to his own ACRs recorded over different period of time. No third party information is sought for by him. 7. At the threshold, we may also observe that on 27-12-2013, Ms. Devyani Sharma, learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly hold that every entry in ACR - poor, fair, average, good or very good - must be communicated to him/her within a reasonable period. 9. The decisions of this Court in Satya Narain Shukla v. Union of India and Others, (2006) 9 SCC 69, and K.M. Mishra v. Central Bank of India and Others, (2008) 9 SCC 120, and the other decisions of this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Officer, Supreme Court of India v. Subhash Chandra Agrawal, (2011) 1 SCC 496, while reiterating the settled principle of law that Right to Information is an integral part of the fundamental right to freedom of speech and expression guaranteed by the Constitution; the Right to Information Act merely recognizes the constitutional right of citizens to freedom of speech and expression; independence of Judiciary forms part of basic structure of the Constitution of India; the independence of Judiciary and the fundamental right to free speech and expression are of a great value and both of them are required to be balanced, referred the following questions for determination by a Larger Bench : 1. Whether the concept of independence of the judiciary requires and demands the prohibition of furnishing of the information sought? Whether the information sought for amounts to interference in the functioning of the judiciary? 2. Whether the information sought for cannot be furnished to avoid any erosion in the credibility of the decisions and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material hold 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 ; 16. Right to information as defined under Section 2(j) reads thus : 2(j) right to information means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to - a. inspection of work, documents, records; b. taking notes, extracts, or certified copies of documents or records; c. taking certified samples of material; d. obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device. 17. Record includes any document and file. Neither the definition clause, nor any provision of the Act postulates that information, prior to enforcement of the Act, cannot be supplied to a citizen. The only fetters prescribed are under Sections 8, 9, 11 and 24 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the citizens to access information from the public authority, which is obliged to facilitate this right. It is a constitutional right. Law with regard to principles of natural justice, fairness and transparency in public administration has evolved manifold. All entries in the ACRs of a civil public servant must be communicated. Information supplied would only be conducive for fairness and transparency in public administration resulting in fairness to public servants. If transparency is to be brought in and public servants are to be held accountable, in the working of public authorities, disclosure of ACRs to the concerned employee cannot be denied. 22. The Apex Court in Chief Information Commissioner and Another v. State of Manipur and Another, AIR 2012 SC 864 = 2012 (286) E.L.T. 485 (S.C.) after taking into account its earlier decisions rendered by various Benches, including Constitution Bench, in People s Union for Civil Liberties and Another v. Union of India and Others, (2004) 2 SCC 476; Dinesh Trivedi, M.P. and Others v. Union of India and Others, (1997) 4 SCC 306; Secretary, Ministry of Information Broadcasting, Govt of India and Others v. Cricket Association of Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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. 26. What is fiduciary relationship has not been defined under the Act. Provisions of Section 8(1)(e), (g) (j), to which our attention was invited, for the sake of convenience, better appreciation and ready reference, are reproduced as under : 8. Exemption from disclosure of information. - (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- (a) to (d) xxx xxx xxx (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; (f) xxx xxx xxx (g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; (h) (i) xxx xxx xxx (j) information which relates to personal information the disclosure of which has no relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ophical and very wide sense, examining bodies can be said to act in a fiduciary capacity, with reference to students who participate in an examination, as a government does while governing its citizens or as the present generation does with reference to the future generation while preserving the environment. But the words information available to a person in his fiduciary relationship are used in section 8(l)(e) of RTI Act in its normal and well recognized sense, that is to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary - a trustee with reference to the beneficiary of the trust, a guardian with reference to a minor/physically/infirm/ mentally challenged, a parent with reference to a child, a lawyer or a chartered accountant with reference to a client, a doctor or nurse with reference to a patient, an agent with reference to a principal, a partner with reference to another partner, a director of a company with reference to a share-holder, an executor with reference to a legatee, a receiver with reference to the parties to a lis, an employ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the form of file notings made by the different officials dealing with the files during the course of disciplinary proceedings against the Petitioner were available to the Union of India in a fiduciary relationship within the meaning of Section 8(1)(e) of the RTI Act. This Court concurs with the view expressed by the CIC that in the context of a government servant performing official functions and making notes on a file about the performance or conduct of another officer, such noting cannot be said to be given to the government pursuant to a fiduciary relationship with the government within the meaning of Section 8(1)(e) of the RTI Act, 2005. Section 8(1)(e) is, at best, a ground to deny information to a third party on the ground that the information sought concerns a government servant, which information is available with the government pursuant to a fiduciary relationship, that such person, has with the government, as an employee. 11. To illustrate, it will be no ground for the Union of India to deny to an employee, against whom the disciplinary proceedings are held, to withhold the information available in the government files about such employee on the ground that such in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 32. 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. (See : Canara Bank v. The Central Information Commission, Delhi and Another, AIR 2007 Kerala 225). 33. Information relating to third party, cannot be disclosed, even i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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