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Decision No. CIC/SM/A/2011/000028/SG/14140Adjunct-II Appeal No. CIC/SM/A/2011/000028/SG
Relevant facts emerging from the Appeal:
Appellant : Mr. H.R. Ram 51-Vikas Nagar, Kanpur,
Uttar Pradesh-208024
Respondent (1) : Mr. U. S. Lal CPIO & General Manager
Small Industries Development Bank of India,
SIDBI Tower, 15 Ashok Marg,
Lucknow-226001
Respondent (2) : Mr. Vikram Hans Chairman & Managing Director,
U.P. Industrial Consultants Ltd., (UPICO),
5th Floor, Kabir Bhawan, G.T. Road,
Kanpur-208002, Uttar Pradesh
RTI application filed on : 28/06/2010 PIO replied on : 20/07/2010 First Appeal filed on : 07/08/2010 with FAA of SIDBI and on 21/10/2010 with FAA of UPIC
First Appellate Authority order on : 23/09/2010 (given by FAA of SIDBI, no order passed by UPIC, FAA)
Second Appeal received on : 23/12/2010
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S.n Information sought Reply of PIO o
1. A copy of the Balance sheet of A copy of the Balance sheet of U.P. Industrial UPICO Ltd., Kanpur for 2007-08, Consultants Ltd. (UPICO), Kanpur for the year 2007- 08-09, 09-2010. 08 (13 pages) and 2008-09(14 pages) be given to the information seeker on payment of Rs. 54/- by him as the document runs into 27 pages. Further, the
Balance sheet for the year 2009-10 is not available with SIDBI and UPICO has been advised to provide
the same, if available, directly to the information seeker vide our letter dated July 02,2010 No. 7840 /RTI-5/337, copy endorsed to the information seeker as well.
A copy of the income tax return for A copy of the application has been transferred to
2. 2007-08, 08-09, 09-2010. UPICO vide our letter dated July 02, 2010 No, 7840 /RTI-5/337, copy endorsed to the information
seeker also, in terms of section 6(3) of the ATI Act, 2005 as information in respect of these points pertain to UPICO.
3. How much total money has been Same as above. paid by UPICO in individual name
of Shri Murali S Parihar, Kanpur,
and a Proprietor of Security Agency
since Feb 2009 till date? Is it an
irregularity or not? If yes, what
action has been taken by the CMD,
UPICO?
4. The appointment of Shri. Vikram Appointment of Shri Vikram Hans as Chairman & Hans as chairman, UPICO and Managing Director has been made by IDBI Bank Ltd. subsequently appointment on the (IDBI) for a tenure period of 3 years commencing post of MD, UPICO by IDBI is February 25, 2009. SIDBI has acquired IDBI's against the rules 72(i) of shareholding in UPICO in September 2009 memorandum & Article of
association of UPICO as the share
holding of IDBI was diluted long
time back to 48.55% from 51.5%.
has SIDBI endorsed to this mistake?
If so, how and why?
5. A copy of latest memorandum & Copy of available Memorandum & Articles of articles of association o UPICO with Association of UPICO (54 pages) received from its date of effectiveness. UPICO on April 19, 2010 be given to the information seeker on payment of Rs. 108 by him. The date of
effectiveness is not available with SIDBI.
6. Names and addresses of all the Name and address of the Board of Directors of board of directors of UPICO with UPICO and their mobile no., telephone no, & fax no., their phone numbers, mobile wherever available, are shown against the names of numbers, fax and addresses. the Directors as given in Annexure -1
7. Are you aware of a Lab Assistant SIDBI received a letter from Shri Saurabh Mishra, who had consumed poison a couple Lab Assistant, UPICO on June 15, 2010 in the matter. of days back and was hospitalized CMD, UPICO has been advised vide our letter dated for 4/5 days? Are you aware June 28, 2010 to furnish his comments. Information CMD,UPICO along with his 4 about court summons to CMD, UPICO is not on our colleagues have been summoned by records.
the court of law on 28/29th of June,
10 for beating a class IV employee
of UPICO. If so, what action has
been taken by SIDBI so for or Page 2 of 5 intend to take?
8. Please provide a list of 20 and odds List of 43 candidates / appointments received tram Grounds for the First Appeal:
Incomplete information provided.
Order of the First Appellate Authority (FAA):
Copy of the SIDBI, FAA order not enclosed. No order passed by the UPICO, FAA.
Ground of the Second Appeal:
No information has been provided by the Respondent no.2
Relevant Facts emerging during Hearing on 18 August 2011: The following were present
Appellant : Mr. P. N. Ram representing Mr. H.R. Ram; Respondent : Mr. S. C. Garg, FFA and Mr. U. S. Lal, CPIO & General Manager on video conference from NIC-Lucknow Studio;
"The Appellant has been provided the information which was available with SIDBI, Lucknow by the PIO. For some of the information which was not available with SIDBI the PIO has transferred the RTI application to PIO, UPICO, Kanpur. The respondent states that UPICO is a company in which SIDBI holds 49% share and 34% of the shareholding is held by other public sector banks. Thus according to the statements of the Respondent 83% of the shareholding of the UPICO is held by Government Institutions. Hence it was legitimate for the PIO to have transferred the RTI application to the PIO of UPICO. The PIO of UPICO has not appeared at the NIC-Studio at Kanpur. There appears to be no reason for the PIO of UPICO not to have provided the information to the Appellant."
Commission Decision on 18/08/2011:
The Appeal was allowed.
"The Commission directs the PIO of UPICO to provide the information to the Appellant before 15 September 2011. In case no PIO has been appointed in contravention of the RTI Act the Chairman & Managing Director of UPICO is directed to provide the information and appoint the PIO failing which the Commission will take appropriate action for violation of the RTI Act.
The issue before the Commission is of not supplying the complete, required information by the PIO of UPICO within 30 days as required by the law.
From the facts before the Commission it appears that the PIO, UPICO is guilty of not furnishing information within the time specified under sub-section (1) of Section 7 by not replying within 30 days, as per the requirement of the RTI Act. It appears that the PIO's actions attract the penal provisions of Section 20 (1). A showcause notice is being issued to him, and he is directed give his reasons to the Commission to show cause why penalty should not be levied on him.
PIO, UPICO will present himself before the Commission at the above address on 15 September 2011 at 4.30pm alongwith his written submissions showing cause why penalty should not be imposed on him as mandated under Section 20 (1). He will also submit proof of having given the information to the appellant."
Relevant Facts emerging at the showcause hearing held on 15 September 2011: The following were present:
Appellant: Mr. P. N. Ram representing Mr. H.R. Ram; Respondent: Ms. Smita Dikshit, Advocate representing UPICO.
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"The Respondent submitted that UPICO is not a public authority. To substantiate her claim, she submitted a copy of the judgment in W.P. (C) No. 7753 of 1986 dated 06/12/1989. The Commission decided that it would issue an order once it perused the submissions of the Respondent.
The order was reserved at the show cause hearing held on 15/09/2011."
Adjunct Decision announced on 23 January 2012:
"It appears that UPICO has not provided the information (both initially as well as after the order of the Commission dated 18/08/2011) to the Appellant. UPICO's main contention is that it is not a public authority, as defined under the RTI Act and hence it is not required to furnish any information. The Commission, in its order dated 18/08/2011, has, on the basis of the submissions of Respondent 1 observed that 83% of UPICO's shareholding is held by government institutions/organisations. Therefore, it was legitimate for Respondent 1 to have transferred the RTI application to the PIO, UPICO.
At the show cause hearing held on 15/09/2011, the Respondent (appearing on behalf of UPICO) submitted that UPICO is not a public authority. To substantiate her claim, she submitted a copy of the judgment in W.P. (C) No. 7753 of 1986 dated 06/12/1989, which has been perused by the Commission. In the said judgment, the High Court of Allahabad has considered the issue whether UPICO is "State" under Article 12 of the Constitution of India. Based on the documents presented to the High Court, it ruled that UPICO is not "State" under Article 12 of the Constitution of India.
Section 2(h) of the RTI Act prescribes the criteria that would qualify an entity as a 'public authority', making the RTI Act applicable to it. The criteria for establishing what constitutes "State" under Article 12 of the Constitution of India cannot be used to determine whether an entity is a 'public authority' under the RTI Act. The Constitution of India and the RTI Act constitute independent areas of law. To determine whether an entity is a 'public authority' or not, it would have to satisfy the requirements of Section 2(h) of the RTI Act only-which appears to be the case with UPICO, as mentioned above. Therefore, the Respondent's contention is rejected.
In view of the aforesaid, the Commission vide its powers under Section 19(8)(a)(ii) of the RTI Act hereby directs the Chairman & Managing Director of UPICO to appoint a Public Information Officer in accordance with the provisions of the RTI Act before February 25, 2012. Further, the Public Information Officer of UPICO so appointed, is directed to bring attested copies of the complete information sought by the Appellant to the Commission on March 12, 2012 at 4:30 pm."
Relevant Facts emerging at the hearing held on 12 March 2012: At the hearing held on 12/03/2012, the PIO (UPICO) failed to appear before the Commission. The Commission did not receive any written explanations from the PIO (UPICO) explaining his absence on the said date. Moreover, the Commission did not receive any written communication either from the Chairman & Managing Director or the PIO stating whether the Commission's order dated 23/01/2012 had been complied with.
Adjunct Decision announced on 3 April 2012:
In view of the aforesaid, the Commission hereby directs the Chairman & Managing Director (UPICO) or his authorized representative to appear before the Commission at the address mentioned above on 3 May 2012 at 4:30 pm. He is directed to bring attested copies of the complete information sought by the Appellant to the Commission on the said date. Further,
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the Chairman & Managing Director (UPICO) on 03/05/2012 shall be required to explain the reasons (if any) for non-compliance of the Commission's order dated 23/01/2012. Therefore, he is directed to bring any other document(s) which he wishes to rely upon.
In the event, the Chairman & Managing Director (UPICO) or his authorized representative fail to appear before the Commission on 03/05/2012, the Commission will take the strictest action available to it under law.
Relevant Facts emerging at the hearing held on 03 May 2012: The following were present:
Respondent: Ms. Smita Dikshit, Advocate representing UPICO. The Respondent has submitted a letter from Mr. Vikram Hans, CMD of UPICO. In this letter Mr. Hans has explained that since he was facing a lot of problem and physical threat from certain disgruntled employees he has been functioning from a camp office at 12- JC Bose Marg, Lal Bagh, Lucknow and hence the directions of the Commission never reached him. A group of employees have also inflected injuries on him in March 2012. He has stated that 49% shares are held by SIDBI which may be transferred. He has sought four weeks time to call Board Meeting to follow the order of the Commission and make a provision for replying to RTI queries. The Respondent Ms. Smita Dikshit also request adequate time be give to UPICO for implementing the provisions of Right to Information Act. She also states that the Appellant's queries have been replied to on 15/09/2011. She assures the Commission that UPICO will meet the requirements of the RTI Act. The Commission also notes that the letter head used by the CMD mentions below UP Industrial Consultants Limited, - "A joint venture of Government of UP, SIDBI and other nationalized banks". UPICO is clearly a Public Authority as defined under Section 2(h) of the RTI Act and the CMD has accepted this in his letter. It is also clear that the company has substantial funding directly or indirectly from the appropriate governments.
Adjunct Decision:
The Commission declares that UPICO is a Public Authority as defined under Section 2(h) of the RTI Act. The Commission directs the Chairman and Managing Director Mr. Vikram Hans to appoint Public Information officer (PIO) and First Appellate Authority (FAA) before 15 June 2012. He will also ensure that the requirements of Section-4 of the RTI Act are complied with before 30 June 2012. A compliance report will be sent to the Commission before 10 July 2012.
Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi
Information Commissioner
03 May 2012
(In any correspondence on this decision, mention the complete decision number.)(ved)
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