The CIC while declaring the Bank of Maharashtra Employees Welfare Trust as a public authority asked it to appoint a PIO and FAA. This is the 194th in a series of important RTI judgements given by former Central Information Commissioner Shailesh Gandhi

The Central Information Commission (CIC), while allowing an appeal, directed the chairman of Bank of Maharashtra Employees Welfare Trust to appoint a Public Information Officer (PIO) and a First Appellate Authority, as mandated under the Right to Information (RTI) Act. The Bench also dismissed the contention of the PIO of Bank of Maharashtra that the Trust is managed by an 'independent' board of trustees which has the entire custody, management and control of the Trust funds.

While giving the judgement on 12 March 2012, Shailesh Gandhi, the then Central Information Commissioner said, "The Executive Director of the Bank, who is a government appointee is the Chairman of the Trust. The Bench can only assume that such officials must necessarily be acting on behalf of the Bank-when they are required to take executive decisions as members of the board of the Trust for the welfare of the Bank's employees. It is also true that significant funding is provided to the Trust by the Respondent-public authority. If the argument of the PIO is accepted, it would necessarily imply a conflict of interest and be an improper slur on the integrity of the Bank officials."

Pune resident, Prakash Ranade, on 18 September 2011, sought from the PIO information regarding the Bank of Maharashtra Employees Welfare Trust. Here is the information he sought...

1. Copy of the constitution of the welfare trust;

2. List of the places where the Holiday Homes for staff members are provided as of April 2011;

3. The agreement copies of the Holiday home owners/hotels that have arrangement with bank for years April 2010-to March 2011 with full terms and conditions;

4. The procedure followed while selection of particular property for Holiday Homes and their renewals after expiry of agreed terms;

5. Inform Names of selection committee members. The details of expenses for their visits to renew/fresh lease etc during the years April 2010 to March 2011 paid by Bank through welfare fund;

6. Total payment made to each Holiday Homes for the financial year and 2010-2011.

Denying the information, the PIO stated, "Information sought is related to the Trust which is a separate legal entity. Hence, information cannot be provided."

Ranade, citing unsatisfactory information provided by PIO filed his first appeal. In his order, the First Appellate Authority (FAA) said, "I have gone through the contention of the appellant & reply by CPIO and I find that the said "Welfare Trust" is a registered Trust. It is managed by an independent Board of Trustees which has the entire custody, management and control of the Trust funds. I therefore agree with CPIO that the trust is a separate legal entity and uphold the decision of CPIO."

Dissatisfied with FAA's order, Ranade then approached the CIC with his second appeal.

During the hearing on 13 February 2012 before the Bench of Mr Gandhi, the appellant stated that the Trust receives a sum of about Rs8 to Rs10 crore from the public authority Bank. "Further, the Executive Director of the Bank is the ex-officio head of the Trust. Moreover, other members of the Trust are employees of the Bank," He said. The CPIO did not deny the said statements and was therefore asked to send his written submissions via email. The Bench then decided to reserve its order.

During the next hearing on 12 March 2012, Mr Gandhi said both the parties had sent their submissions. "At the outset, it is relevant to mention that the PIO has stated that the Trust is a separate legal entity, registered with the Charity Commissioner, Pune. Therefore, based on the submissions and arguments of the parties, the issue framed by this Bench is whether the Bank of Maharashtra Employees Welfare Trust is a 'public authority' under the RTI Act," he said.

Section 2(h) of the RTI Act, which defines a 'public authority' stipulates as follows:

"public authority" means any authority or body or institution of self-government established or constituted,-

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government, and includes any-

(i) body owned, controlled or substantially financed;

(ii) non-Government Organisation substantially financed,

directly or indirectly by funds provided by the appropriate Government;" (emphasis added)

The Bench said, "From a plain reading of the above, it appears that the Trust is not covered under clauses (a), (b), (c), (d) and (ii) of Section 2(h) of the RTI Act. Therefore, the issue which is to be determined is whether the Trust is a body owned, controlled or substantially financed directly or indirectly by funds provided by the appropriate Government."

Ranade, the appellant has inter alia mentioned in his submissions that at the hearing held on 13 February 2012, the PIO have already submitted that the Bank had provided substantial funds to the tune of Rs90 to Rs100 crore to the Trust since 1999. In this regard, the PIO has submitted that the amount contributed by the Bank to the Trust since its inception in 1999 is Rs50.80 crore. "Though the term 'financed' is qualified by 'substantial', Section 2(h) of the RTI Act does not lay down what actually constitutes 'substantial financing'. It is akin to 'material' or 'important' or 'of considerable value' and would depend on the facts and circumstances of the case," the Bench noted.

"In the instant case," Mr Gandhi said, "a contribution or grant of Rs50.80 crore given by the Bank from its corpus of public funds cannot be considered as insignificant. This would render the Trust as being 'substantially financed' indirectly by Government funds. Citizens have a right to know about the manner, extent and purpose for which public funds are being deployed by the Government or its agencies. Having said so, not every financing of an entity in the form of a contribution or grant by the Government or its instrumentalities (such as the Bank) would qualify as 'substantial'-but certainly a grant of over Rs1 crore would constitute 'substantial financing' rendering such entity a public authority under the RTI Act."

Ranade, the Appellant had further submitted that the Trust was run by the executives of the Bank as ex-officio members and by staff members as representatives. The PIO stated that the Trust is a separate legal entity, registered with the Charity Commissioner, Pune under Registration NoE-2935-Pune. The location of the registered office of the Trust is-'Lokmangal, 1501, Shivajinagar, Pune-411005'. In addition, the PIO submitted that the Trust is managed by an independent board of trustees which has the entire custody, management and control of the Trust funds. The PIO also provided the details of the officials of the Bank who are the trustees of the said trust.

Mr Gandhi said, "…the Bench is of the view that mere registration with a Government/statutory authority does not in itself render an entity a 'public authority' under the RTI Act. Therefore, the Trust does not appear to be 'owned' by the appropriate Government. As regards being 'controlled' by the appropriate Government, the said term has not been defined under the RTI Act. There are various forms in which the Government exercises control over an entity, which is relevant in determining whether the latter is a public authority."

The PIO had stated that the Trust is managed by an 'independent' board of trustees which has the entire custody, management and control of the Trust funds. However, Mr Gandhi said, "The Bench is of the view that such a claim is untenable. It is difficult to assume that senior officials of the Bank can constitute the entire board of trustees in an independent capacity where the Trust itself has been set up for the welfare of the Bank employees."

Mr Gandhi said, "The RTI Act does not specify 'complete control' in Section 2(h). As per P Ramanatha Aiyar's The Law Lexicon (2nd Ed., Reprint 2007 at p. 410), the term 'control' means- 'power to check or restrain; superintendence; management…’. It appears that the presence of senior Bank officials especially the Executive Director who is a public servant on the board of trustees may check or ensure that decisions taken in the Trust are in consonance with its avowed objectives i.e. promoting the welfare of the Bank's employees. Therefore, it cannot be ruled out that the Bank officers exercise a significant degree of control on the decisions of the Trust."

Based on the reasons, the Bench ruled that the Bank of Maharashtra Employees Welfare Trust is a public authority under Section 2(h) of the RTI Act.

While allowing the appeal, Mr Gandhi directed the Chairman of the Trust to appoint a PIO and FAA as mandated under the RTI Act before 15 April 2012. "The PIO so appointed shall provide the complete information as per records in relation to the RTI application dated 18 September 2011 to the appellant as per the provisions of the RTI Act," the Bench said.

CENTRAL INFORMATION COMMISSION

Decision No. CIC/SG/A/2011/003688/17641

http://ciconline.nic.in/cic_decisions/CIC_SG_A_2011_003688_17641_M_77983.pdf

Appeal No. CIC/SG/A/2011/003688

Appellant                                          : Prakash Ranade,                                                                      

                                                          Pune-411030

Respondent                                        : Ajay Banerjee,

                                                            CPIO & CGM

                                                            Bank of Maharashtra,

                                                            Planning Department,

                                                            H.O.: Lokmangal, 1501, Shivajinagar,

                                                            Pune-411005