IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 8396 of 2008 Decided on: May 19, 2008 State of Punjab and others …Petitioners Versus State Information Commission, Punjab and another …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MRS. JUSTICE SABINA Present: Mr. Suvir Sehgal, Addl. AG, Punjab. for the petitioners. M.M. KUMAR, J. This petition filed under Article 226 of the Constitution of India challenges order dated 5.11.2007 (P-1), passed by the State Information Commission, Punjab (for brevity, ‘the Commission’), holding that Shri Faquir Chand Sharma-respondent No. 2 is entitled to the information sought by him. The Executive Engineer, Provincial Division No. 1, PWD (B&R), Patiala-petitioner No. 3 has been directed to deliver copies of his ACRs for the period from 1.4.2000 to 31.3.2006 within a period of 15 days to him. Brief facts of the case are that on 18.7.2006, Shri Faquir Chand Sharma-respondent No. 2, filed an application under the Right to Information Act, 2005 (for brevity, ‘the Act’), with the Public C.W.P. No. 8396 of 2008 Information Officer-petitioner No. 3 for supply of copies of Annual Confidential Reports for the period from 1.4.2000 to 31.3.2006. The Public Information Officer-petitioner No. 3 referred the matter to the Appellate Authority i.e. Superintendent Executive Patiala Circle-I, PWD (B&R) Branch, Patiala. After considering the matter, the Appellate Authority vide order dated 8.8.2006 declined the request on the ground that the information demanded by respondent No. 2 is confidential and the same is exempted from disclosure under Section 8 of the Act. Feeling aggrieved, Shri Faquir Chand Sharma- respondent No. 2 filed an appeal before the Commission. Considering the importance of the issue involved, the matter was listed for hearing before the full bench of the Commission on 12.3.2007, 6.6.2007 and 18.7.2007. The Commission framed the following issue for determination: “Whether an employee is entitled, under the RTI Act, 2005, to have access to his Annual Confidential Reports?” The petitioners took the stand before the Commission that the information comprised in an Annual Confidential Report is held by the State in a fiduciary relationship and in terms of sub-clause (e) of Section 8(1) of the Act such information is exempt from disclosure until larger public interest warrants to the contrary. It was further pleaded that the information sought by Shri Faquir Chand Sharma-respondent No. 2 since related to his personal ACR, the 2 C.W.P. No. 8396 of 2008 disclosure of which has no relationship to any public activity or interest and, therefore, clause (j) of Section 8(1) of the Act are attracted. Reliance was also placed on Government instruction bearing No. 1485-ASI-GI/7762, dated 1.3.1961, which postulates that confidential reports are not to be communicated or shown to the officer concerned except to the extent of communicating adverse remarks. The Commission after discussing all the pleas raised by the petitioners allowed the appeal filed by Shri Fquir Chand Sharma- respondent No. 2 vide order dated 5.11.2007 (P-1), which is subject matter of challenge in the instant petition. After hearing learned State counsel and perusing the paper book we are of the considered with that there is no merit in the instant petition and the same deserves to be dismissed. At the outset it would be apposite to read provisions of sub-clauses (e) and (j) of Section 8(1) of the Act, which 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,- xxx xxx 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; xxx xxx xxx xxx xxx 3 C.W.P. No. 8396 of 2008 (j) 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.” A perusal of Section 8(1)(e) of the Act shows that it opens up with a non-obstante clause providing that there is no obligation cast on the authorities to give a citizen any information concerning the fiduciary relationship of another person. However, the information may still have to be made available if larger public interest justifies such disclosure. The Commission has rightly taken the view when it observed thus:- “ The purport of this clause on a plain grammatical construction is that in a case where certain information is available to a person (meaning thereby, a Public Authority) in a fiduciary relationship is a relationship akin to a trust. The holder of information in a fiduciary capacity is a trustee and he holds the information for the 4 C.W.P. No. 8396 of 2008 benefit of the cestui que trust (That is the beneficiary of trust). Since the trustee holds the information for the benefit of the person to whom the information relates, the intendment behind the statutory provision (clause ‘e’) is that it be exempted from disclosure unless the larger public interest warrants otherwise. This clause, that is, clause (e) would be attracted only when third parties seek information pertaining to the beneficiary of the trust in the hands of the Public Authority (holding information as a trustee for the person to whom it relates). It is, thus, seen that the necessary pre-condition for the applicability of Clause (e) supra is that the Public Authority opts the information as a trustee for the person to whom the information relates. The Public Authority, is therefore, expected to keep that information confidential so that the interests of the beneficiary of the trust are not in any manner harmed. The refrain against disclosure of information of this nature can only be overridden where the large public interest so warrants. In the case of an ACR, however, none of the essential ingredients of clause (e) exist. The Public Authority does not hold information contained in an ACR as a trustee for the employee concerned or for any other person. ……” Likewise, according to Section 8(1)(j) of the Act, if information sought is purely personal information without any 5 C.W.P. No. 8396 of 2008 relationship to any public activity or interest then its disclosure could be refused. It follows that disclosure of any information which is in public domain, cannot be denied. The ACRs of a public servant are not private in character. In any case, when an employee asks for disclosure of his own ACR the demand cannot be declined because now all ACRs are required to be communicated to a public servant, whether adverse, good, very good etc. In paras 19 and 20 of the judgment rendered in the case of Dev Dutt v. Union of India and others (Civil Appeal No. 7631 of 2002, decided on 12.5.2008), Hon’ble the Supreme Court has observed as under:- “19. In our opinion, every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non- communication of such an entry may adversely affect the employee in two ways: (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non- communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India [AIR 1978 SC 597] 6 C.W.P. No. 8396 of 2008 (supra) that arbitrariness violates Article 14 of the Constitution. 20. Thus it is not only when there is a bench mark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder.” In the light of the aforesaid view of Hon’ble the Supreme Court, it has now become obligatory to even communicate good or better reports to a public service or an employee of the Corporation, Board or judiciary. Therefore, the controversy has been settled by Hon’ble the Supreme Court. For the reasons aforementioned, this petition fails and the same is dismissed. (M.M. KUMAR) JUDGE (SABINA) May 19, 2008 JUDGE Pkapoor 7