Orissa High Court
Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar and R.K. Pattnaik, JJ. issued a declaratory writ to the effect that the impugned notification dated 11-08-2016 issued by the Information and Public Relations Department, Government of Odisha under Section 24(4) of the Right to Information Act, 2005 (‘RTI Act’), will not permit the Government to deny information pertaining to the Vigilance Department involving allegations of corruption and human rights violations, and other information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department.

The instant petition was filed by way of PIL challenging the notification dated 11-08-2016 issued by Commissioner-cum Secretary, Information and Public Relations Department, Government of Odisha under Section 24(4) of the RTI Act, providing that nothing contained in the RTI Act “shall apply to the General Administration (Vigilance) Department” of the Government of Odisha “and its organization”.

The Court observed that Section 24(1) of the RTI Act is similarly worded as Section 24(4) of the RTI Act, with one difference being that the former relates to ‘intelligence and security organizations, being organizations established by the Central Government’ whereas Section 24(4) of the RTI Act pertains to those established by the State Government. However, in both instances, where information that is sought is in respect of allegations of violations of human rights, prior approval of the Information Commission concerned, Central or State, as the case may be, is required. Thus, the legislative intent is to provide information, and not to withhold it, particularly when it pertains to allegations of corruption and human rights violations.

The Court while rejecting the contention of the opposite party that the information that stands protected from disclosure under Section 8 of the RTI Act will somehow straightway become available to an applicant in the absence of the impugned notification under Section 24(4) of the RTI Act, noted that what stands protected by Section 8 of the RTI Act would remain as such and additionally when such information pertains to allegations of corruption and human rights violations, the proviso to Section 24(4) of the RTI Act would have to be considered as well. Thus, it is not as if such information would be straightway made available to a person seeking such information. In processing the request by an applicant seeking information regarding violation of human rights or involving corruption, regard will be had to Section 8 of the RTI Act. That is the true purport of the non obstante clause at the beginning of Section 8 of the RTI Act. In effect, therefore, there is no conflict between Section 8 on the one hand and the proviso to Section 24(4) of the RTI Act on the other.

Placing reliance on Md. Abid Hussain v. State of Manipur, 2015 SCC OnLine Mani 129 wherein it was observed that “if there are any information which do not impinge upon the confidentiality of the sensitive activities of the organization and if such information is also relatable to the issues of corruption or violation of human rights, disclosure of such information cannot be withheld. Similarly, in respect of the police organizations in the State of Manipur if anybody seeks any information which does not touch upon any of the sensitive and confidential activities undertaken by the police department and if the said information also can be related to the issues of any allegation of corruption or violation of human rights, such information cannot be withheld.”

Further reliance was placed on CBSE v. Aditya Bandhopadhyay (2011) 8 SCC 497 wherein it was observed that “Section 8 should not be considered to be fetter on the right to information, but as an equally important provision protecting other public interest essential for the fulfillment and preservation of democratic ideals.”

The Court concluded that the impugned notification in so far as it seeks to exempt the entire Vigilance Department of the Government from the view of the RTI Act would run counter to the first proviso to Section 24(4) of the RTI Act. In other words, the notification insofar as it prevents disclosure of information concerning the General Administration (Vigilance) Department even when it pertains to allegations of corruption and human rights violations would be contrary to the first proviso to Section 24(4) of the RTI act and, by that yardstick, would be unsustainable in law. If under the RTI Act disclosure is the norm, and non-disclosure is the exception, then the impugned notification seeks to take away what is provided by the RTI Act and is therefore ultra vires the RTI Act.

The Court thus held “the General Administration (Vigilance) Department of the Government of Odisha cannot, notwithstanding the impugned notification dated 11th August 2016, refuse to divulge information pertaining to corruption and human rights violations, which information is expressly not protected from disclosure by virtue of the first proviso to Section 24(4) of the RTI Act. Also, information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department, cannot be withheld”

[Subash Mohapatra v. State of Odisha, 2022 SCC OnLine Ori 2014, decided on 20-06-2022]


Advocates who appeared in this case :

Mr. S.P. Das, Advocate, for the petitioner;

Mr. S.N. Das and Mr. Srimanta Das, Advocates, for the opposite parties;

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: The Division Bench of Akil Kureshi, CJ. and S.G. Chattopadhyay, J., dismissed a petition which challenged an order passed by the Central Administrative Tribunal, Guwahati, dismissing the original application.

Mother of the petitioner was an employee of the Accountant General(Audit), Tripura, Agartala and she died while in service on 25-01-2013, leaving behind the petitioner, his elder brother and daughter. The petitioner had applied for appointment on compassionate ground which was rejected by the department on the ground that at the time of death the petitioner was already married. However, subsequently, the case of the petitioner was reopened and reconsidered. However, the request was again denied on the ground that the family of the deceased had one earning member.

The petitioner thereupon approached the Central Administrative Tribunal. His original application was rejected mainly on the ground that the purpose behind giving compassionate appointment was to provide urgent financial assistance to a family left in distress and in the present case, the Government servant having expired long back, such purpose would not be fulfilled. Thus, the current petition was filed.

The Court was of the view that in facts of the present case they are not inclined to entertain this petition as records say that petitioner was aged about 33 years at the time of the death of his mother and was already married and the family had one member who was holding a permanent post in the department of Accountant General which was not disclosed while seeking compassionate appointment.

The Court dismissed the petition holding that the petitioner had a duty to make a clean disclosure about the survivors left behind by the deceased.[Babu Dhanuk v. Union of India, 2021 SCC OnLine Tri 495, decided on 28-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Advocates:

For Petitioner(s): Mr Pradyot Maishan

For Respondent(s): Mr Biswanath Majumder, C.G.C.

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Saroj Punhani (Information Commissioner), harmonised the conflicting interests of the parties keeping with the letter and spirit of the Right to Information Act.

Following information was sought by the appellant:

  1. “Provide a copy of Thesis titled ‘Studies on some nitrogen fixing genes of Azotobacter vinelandi submitted/authored by Umesh Kumar Bageshwar which is catalogued in Dr Zakir Husain Library of Jamia Millia Islamia University under Access No. 130906. 
  1. If the said Thesis is not available for circulation, provide the reason(s) for inaccessibility/restricted circulation of the said Thesis with a copy of instructions, if any restricting such circulation.
  1. lf the said Thesis circulation is restricted, provide the guidelines/policy that govern restricted access in Dr. Zakir Husain Library of Jamia Milia Islamia University with a copy of categories of items that can be placed in restricted access.”

CPIO submitted that the thesis sought for by the appellant pertains to the work of a third party who had categorically informed the University not to disclose the thesis without having an NDA signed with him by the requestor concerned.

Further, CPIO explained that the averred scholar has already got a US Patent and he intends to file for an Indian Patent too with respect to the research wok documented in the averred thesis and has also apprehended that a number of foreign companies are trying to gain unrestricted access to the said work for commercially exploiting it without his consent.

In view of the commercial viability of the said thesis and the protected interest of the scholar and his guide, the FAA invoked Section 8(1)(d) of the RTI Act in order to deny the information to the appellant.

Adding to the above, emphasis was laid on the point that the research scholar informed the University that if any request for access to the said thesis comes that should be facilitated through him.

Analysis, Law and Decision

Commission observed that the appellant primarily harped on the relevant University Ordinances to insist that the thesis of the averred research scholar ought to be disclosed in the public domain as once the scholar submits the thesis to the University, it ceases to be the property of the scholar and hence the consent or dissent of the said scholar is not consequential to the disclosure of the thesis in the public domain.

In Commission’s view, the arguments of the representative of the Appellant questioning the originality of the said thesis or challenging the Patent filing on the grounds that the idea invested in the thesis is no more ‘novel’ are more in the nature of self-serving arguments or at best calls for the intervention of the University administration to assess if any procedural or ethical lacunae is pertinent in the award of degree based on the averred thesis in the context of the serious allegations of the Appellant.

Coram stated that the appellant may note that merely because University Ordinance prescribes publication of the thesis does not take away the protection available to the disclosure of the same under the RTI Act if exemption of Sections 8 and 9 therein is applied and justified.

thesis publication of the research scholars cannot be reasonably even brought under any of the suo motu components of disclosure envisaged under Section 4 of the RTI Act, thereby reinforcing the proposition that the protection of Section 8 and 9 exemptions is very much available to the CPIO in the instant case.

Further, adverting to the peculiarity of the instant case in the context of the serious allegations of the Appellant and the admitted stance of the CPIO that the third party intimated that the thesis be withheld from public disclosure or publication, the Commission deemed it expedient to harmonise the conflicting interests of the parties concerned in keeping with the letter and spirit of the RTI Act.

In view of the above discussion, Commission directed CPIO to provide a copy of the relevant and available instructions received from the third party requesting for the complete confidentiality of the said thesis. or in the absence of said record, any other corresponding document as available should be provided to the Appellant.

CPIO was also directed to provide the relevant and available guidelines governing restricted access of thesis submitted by the scholars of the University to the Appellant, in case the same was not available, a categorical statement shall be stated in the CPIO’s reply.

Appellant was at liberty to approach the University for the purpose of facilitating access to the thesis subject to the signing of NDA in consultation with the concerned research scholar.

Note for UGC

Instant case impliedly suggests that despite relevant University Ordinances stipulating access permission to the submitted thesis of scholars, the prerogative lies with the University to withhold one such thesis in absolute confidentiality on the grounds of commercial viability and market competition. If that be the message that the Respondent University is conveying, it may be assessed if the said prerogative of the University is backed by any UGC Regulations and if the same is conducive to the interests of the research community at large.

Hence, in regard to the above, Vice-Chancellor, JMI shall consider placing in the public domain any exceptions to the rule of granting access to the submitted thesis of the scholars in order to dispel the apprehensions of other fellow research scholars or the general public at large and to avoid casting aspersions on the work of the scholars.

In view of the above discussion, appeal was disposed of. [Rajeev Kumar v. CPIO, Jamia Milia Islamia; 2021 SCC OnLine CIC 4459; decided on 12-04-2021]


Advocates before the Commission:

Appellant: Represented by Varun Sharma, Advocate through the intra-video conference.

Respondent: Dr Shakeb Ahmad Khan, Professor & CPIO present through intra- video conference.

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.S. Shinde and N.B. Suryawanshi, JJ., dismissed an appeal filed by the State against the order of the trial court whereby the respondent-accused was acquitted of the charge of murder punishable under Section 302 IPC. 

The respondent was accused of killing his wife. It was alleged that he had suspicion that his wife had an illicit relationship with her brother-in-law. And on the day of the incident, the accused had asked his wife to stitch his clothes, which was refused by the wife. It was alleged that, thereafter, the accused caused his wife to fall down and throttled her with his hands. The accused then gave information to Police Sub-Inspector Jafar that he has murdered his wife. The accused was tried for committing an offence punishable under Section 302 IPC. He was, however, acquitted by the trial court. Aggrieved thereby, the State preferred the instant appeal. 

The main evidence on which the prosecution case rested was the information given by the accused to the Police Inspector wherein he implicated himself with having committing his wife’s mother. The High Court was of the view that: “The disclosure by the accused to Jafar (PW 1) in police station that, he committed murder of his wife Kalpana by throttling her in his dwelling house, because he was suspecting the character of his wife Kalpana, is not admissible in the evidence.”

The Court relied on various decisions of the Supreme Court relating to admissibility in evidence of a confessional statement of the accused, including Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119; Khatri Hemraj Amulakh v. State of Gujarat, (1972) 3 SCC 671 and Bheru Singh v. State of Rajasthan, (1994) 2 SCC 467. The conspectus of law as culled out from authoritative pronouncements of the Supreme Court is that no part of a first information report lodged by the accused with the police could be admitted into evidence if it was in the nature of a confessional statement. The statement could, however, be admitted to identify the accused as the maker of the report. The part of the information as related distinctly to the fact discovered in consequence of the information could also be admitted into evidence under Section 27 of the Evidence Act if the other conditions of that section are satisfied.

Notably, the prosecution did not collect any other material including nail clippings of the accused which could have thrown light on the prosecution case. In such view of the matter, the High Court held that the trial court has taken a plausible view and the order under challenge did not warrant any interference. Resultantly, the appeal filed by the State was dismissed.  [State of Maharashtra v. Raju Mahipat Sakate, 2020 SCC OnLine Bom 43, decided on 7-1-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S Sistani and V Kameswar Rao, JJ., dismissed an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter “Arbitration Act”) read with Section 10 of the Delhi High Court Act, 1966 and Section 13 of the Commercial Courts Act, 2015 against the order of a Single Judge wherein the appellants had raised objections against the award of the arbitrator under Section 34 of the Arbitration Act.

The crux of the argument of the appellants was that the arbitrator failed to follow the principles of natural justice by not making a full and fair disclosure that he had been appointed as an arbitrator by the respondent in as many as 43 cases prior to the present case. The appellants pleaded that on this ground alone, the award rendered by the arbitrator should be set aside. The appellants, admittedly, had not urged this argument before the Single Judge.

The Court noticed that the arbitrator had issued a notice to the parties, wherein the following relevant sentence was quoted, “….currently adjudicating on multiple claims filed by the claimant company.” The order-sheet reflected that the hearing was attended by counsel for both parties. Consequently, the Court found no grounds for interfering with the order passed by the Single Judge for two reasons. The first being that the argument urged before the Court was not raised in front of the Single Judge, and secondly, the judgment in Aditya Ganapa v. Religare Finvest Ltd. (OMP No. 1038 of 2014, decided on 30.01.2015) relied on by the appellants did not fit in the factum of the present case where the arbitrator had indeed, disclosed his interest to the parties. Appeal dismissed. [Sidhi Industries v. M/s Religare Finvest Ltd.,  2017 SCC OnLine Del 12685, decided on 11.12.2017]

Legislation UpdatesNotifications

Circular on Mutual Funds

[SEBI/HO/IMD/DF2/CIR/P/2017/35  dated April 28, 2017]

1.Please  refer  to SEBI  Circular  No. SEBI/HO/IMD/DF2/CIR/P/2016/42 dated 18 March 2016.

2.In partial modification of the above mentioned circular, para C of the circular pertaining to disclosure of executive remuneration shall read as under:

“With the  underlying objective to promote transparency in remuneration policies so that executive remuneration is aligned with the interest of investors, MFs/AMCs shall make the  following disclosures pertaining to a financial year on the MF/AMC website under a separate head–’Remuneration‘:

1. Name, designation and remuneration of Chief Executive Officer (CEO), Chief  Investment  Officer  (CIO) and Chief Operations Officer (COO) or their  corresponding equivalent by whatever name called.

2. Name, designation and remuneration received by top ten employees in terms of remuneration drawn for that financial year.

3. Name,  designation  and  remuneration of  every  employee of  MF/AMC whose :

a. Annual remuneration was equal to or above one crore and two lakh rupees for that financial year.

b. Monthly remuneration in the aggregate was not less than eight lakh and fifty thousand rupees per month, if the employee is employed for a part of that financial year.

4. The  ratio  of  CEO’s  remuneration  to  median  remuneration  of  MF/AMC employees.

5. MF’s total AAUM, debt AAUM and equity AAUM and rate of growth over last three years. For  this  purpose,  remuneration  shall  mean  remuneration  as  defined  in clause  (78)  of section  2 of the Companies Act, 2013.

The AMCs/MFs shall disclose this information within one month  from  the  end  of  the  respective financial year (effective from FY 2016-17).”

3. This   circular   is   issued   in   exercise   of   the   powers   conferred   under Section 11 (1) of the Securities and Exchange Board of India Act 1992, read with the provision of Regulation 77 of SEBI (Mutual Funds) Regulations, 1996 to  protect  the  interests  of  investors  in  securities  and  to  promote  the development of, and to regulate the securities market.

Securities and Exchange Board of India

Supreme Court Cases

Cases Reported in 2014 SCC VOL. 6 JULY 14, 2014 PART 3

Termination whether based on material evidence, can be examined by Court, but not sufficiency of the grounds. Furthermore, there is no need of assignment/disclosure of reasons for invocation of pleasure doctrine. Lastly, Court cannot substitute its own conclusion on the basis of materials on record. In a constitutional set-up, when office is held during the pleasure of the President, it means that the officer can be removed by the authority on whose pleasure he holds office without assigning any reason. The authority is not obliged to assign any reason or disclose any cause for the removal.

Union of India v. S.P. Sharma, (2014) 6 SCC 351