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Lawyers opinion denied under Sec 8(1)(e) - Fiduciary relationship


dnandu

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Hello,

I have made a claim on my Bank as an ex employee for promotion. The bank has taken an opinion on the same from their panel lawyer. I have asked for the gist of the opinion as well as copy of the same through an application under RTI act 2005.They have replied that it is the intellectual property not covered under RTI.Is it correct? If not how I do I proceed further?

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MANOJ B. PATEL

Dear member, though it is related with client and lawyer i.e. a fiduciary relationship but i think as matter is connected with you and your promotion you can get the gist/copy of opinion of lawyer. You may file FA.

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Prasad GLN

Fit for filing first and then second appeals as expeditiously as possible. Simple denial quoting contents of exemption is not sufficient, PIO should justify as to how the opinion amounts to intellectual property.

However, we can learn more from the bank CPIO, if you can post your query and their reply severing names.

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RAVEENA_O

The question of fiduciary relationship exists only between the lawyer and the client. Whatever opinion given by the lawyer to department as a client is held by and under the control of the department itself. The lawyer was paid for the services he rendered and the department has acted upon the opinion rendered by the client. The standing counsel or the lawyer is appointed to obtain such opinions and the department is required to act on that. Therefore, there is no question of fiduciary relationship for the client / department to disclose the opinion. Moreover, the legal opinion rendered by a lawyer appointed by the department is not an intellectual property of the lawyer. The PIO must clearly come out as to why the opinion rendered by the lawyer needs to be protected and become an intellectual property, especially when it relates to service matter. More statement that it is an intellectual property is not enough. How disclosure the socalled intellectual property would affect the department needs to be brought out by the PIO for claiming exemption. An intellectual property is required to be registered or patented and in absence of the department taking any such action, it cannot be said that the opinion rendered by the lawyer is an intellectual property.

 

As already suggested, file First Appeal. Please revert back to us for further advice.

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MANOJ B. PATEL

I reproduce a para of decision.

 

Through this Order the Commission now wants to send the Note message loud and clear that quoting provisions of Section 8 of the RTI Act ad libitum to deny the information requested for, by CPIOs/Appellate Authorities without giving any justification or grounds as to how these provisions are applicable is simply unacceptable and clearly amounts to malafide denial of legitimate information attracting penalties under section 20(1) of the Act.”CIC/OK/A/2006/00163 dtd. 7 July, 2006.

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RAVEENA_O

So viewed from any angle, filing First Appeal is the best solution. Please go ahead. You may please post the draft First Appeal for further guidance.

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I am amenable for a second appeal but is stuck with on what grounds. I shall be glad to get help in drafting the matter for appeal.

Thanks

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jps50
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my understanding is panel lawyer is paid by the bank so the information so received is not fiduciary

strong worded SA along with presence in hearing will make a difference

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MANOJ B. PATEL

Dear member, just i found a decision and its gist is as under.

 

When a counsel is engaged, doctrine of legal professional privilege comes in to existence, automatically creating a fiduciary relationship between the client and the advocate. In other words, the doctrine of legal professional privilege is sacred and as such any information given by the client and received from the counsel need not be disclosed. --Maj. J.S Kohli(Retd) v. Telecom Regulatory Authority of India 41/ICPB/2006.

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Prasad GLN

I beg to differ and I remember to have seen a decision either by CIC or by Court against such decision but could not recollect it.

Opinion is an opinion on record and not exempted as it was not to be treated in fiduciary relationship and it also points out accountability and transparency factors.

This is a discussion that requires the attention of experts.

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The reason given now is "Since there is no larger public interest in the disclosure of such information, the same is denied". My dilemma is how to represent that it involves larger public interest. The case is that my promotion kept in sealed cover in 1993 has not yet been released after getting acquittal. On my representation the Bank has sought opinion and I have been orally told that the opinion is in my favour. But its almost 15 months now and the promotion is not released. There has not been proper implementation of Sealed Cover procedure in the Bank , not only in my case but even for others. The judgement in a writ filed by me in High Court has brought out the same (Writ petition no. 1614 of 2008 Desikan Nanda Kumar vs Dena Bank on 1 October, 2008). Now after acquittal also the Bank is not implementing. I need help in drafting the second appeal saying that it does involve larger public interest. Tks

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MANOJ B. PATEL

What is the order of HC in W.P. filed by you? Kindly inform so members can also know something as it is interesting matter.

 

 

Sent from RTI INDIA Mobile App

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Prasad GLN

Only if the information is rejected, one can seek information stating larger public interest.

Please understand, this clause is in favour of citizens and never against them.

Information has to be provided even under exempted items, if PIO feel that LPI is involved.

No LPI is not a reason for denial of information and the more when applicant is an affected party.

Piece meal information is not correct. Please post the exact reply as attachment and it is happening in many post, that they provide some thing, some other thing is required, some suppression of material facts, all this is engaging unnecessary posts and wastage of precious time for both.

Understand the situation. If you want full fledged response post denial from PIO as attachment, so that one can read and interpret correctly.

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I have attached the judgement as requested. (I could not attach but it is available on the net Desikan Nanda Kumar vs Dena Bank on 1 October, 2008).

However, the gist at the end is as follows:

If the Petitioner has been selected by the Selection Committee, then the Chairman and Managing Director will consider the case of the Petitioner within eight weeks as set out in this judgment. Needless to say that subsequently, if the Petitioner is exonerated or discharged or acquitted from the charges, the Petitioner’s promotion would be considered in terms of the rules in force pertaining to sealed cover procedure.

Rule made absolute accordingly.

. No order as to costs.

(A.A. KUMBHAKONI, J.) (F.I. REBELLO,J.)

 

Subsequently I have been acquitted by Judgement dated 26.04.2014.The gist is as follows:

POINTS FINDINGS

1. Whether the accused entered in to a criminal conspiracy to

cause wrongful loss to Bank and wrongful gain to themselves? NOT PROVED

2. Whether the accused nos. 1 to five wilfully omitted to

check and verify the transactions and by misusing their

position as public servant committed wrongful loss to Dena Bank? NO

3. Whether the accused on the basis of false and fabricated

bills and documents released the huge sums of money in the

account of the accused nos. 6 & 7? NO

4. What offences if any are proved? NONE

5. What order? ACQUITTED

 

On the basis of the acquittal I am claiming that the promotion held in sealed cover since 1993 is given effect to (by regularising the adhoc released in 2008 based on the judgement in Writ) as well as further promotions for which my juniors were called . There is no response from the Bank and I am contemplating Contempt of court action. Tks.

 

- - - Updated - - -

 

The reply of the PIO is as follows:

I have carefully examined the contention of the Appellant and hold that the information sought at point no. 2(a) to (e) of the RTI application is coming under Section 8 (1) (e) and can be disclosed only in larger public interest. Since there is no larger public interest in the disclosure such information the same is denied.

 

- - - Updated - - -

 

Sorry the Judgement copy attachment is successful.

Judgement 1614-08.pdf

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Prasad GLN

As far as my knowledge and opinion is every person affected by any decision has a right to know things belonging to him, there is no question of fiduciary authority, as legal opinion was never given to PA was considered as held in fiduciary capacity, how ever reverse may apply, as client's information with advocate is confidential. The opinion of CPIO is not correct. In kind of more pressures, they may even change the legal opinion.

To me it appears that writ before HC is the best course.

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Prasad GLN

I have gone through legal notice. It is alright that employee was exonerated from criminal charges. Apart from the outside bank affairs, there must be an internal report and disciplinary proceedings also, which you have not enlightened. Bank must commence internal procedure and the investigation report clearly says whether the employee was innocent or part of conspiracy. I know in several banks, vigilance report will be delivered in two versions, one exonerating employee, and one finding employee as negligent of his lawful duties. Depending on the attitude of the concerned decision making authority, one is taken on record and the other is kept in confidential file. In case of legal problems like this, they will bring out the second report to justify their stand. I am not sure whether your bank applies that procedure or not.

I am also not sure whether sealed cover approach is resorted in case of all disciplinary proceedings and finally they go as to whether there was any financial loss was there to the bank or not and whether employee colluded with the party. I have never seen any bank in giving promotion for any officer who faced disciplinary proceedings once even though there is a sealed cover procedure, interview officials deliberately disqualify him by giving less marks in interview.

However you have nothing to loose after retirement. The decision given by the Bank or by the Court may become a good precedent.

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karira

What does Sec 8(1)(e) say ?

 

“Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants disclosure of such information”

 

==============

 

What is meaning of "fiduciary" ?

 

The word “fiduciary”is derived from the Latin fiducia meaning “trust”, a person (including a juristic person such as Government, University or bank) who has the

power and obligation to act for another under circumstances which

require total trust, good faith and honesty. The most common example

of such a relationship is the trustee of a trust, but fiduciaries can

include business advisers, attorneys, guardians, administrators,

directors of a company, public servants in relation to a Government

and senior managers of a firm/company etc. The fiduciary relationship

can also be one of moral or personal responsibility due to the superior

knowledge and training of the fiduciary as compared to the one whose

affairs the fiduciary is handling. In short, it is a relationship wherein

one person places complete confidence in another in regard to a

particular transaction or one’s general affairs of business. The Black’s

Law Dictionary also describes a fiduciary relationship as “one founded

on trust or confidence reposed by one person in the integrity and

fidelity of another.”

 

===============================

 

In this case, the requested "information" was provided by the lawyer to the public authority (PA).

 

The relationship between PA and lawyer is fiduciary and any information given by the PA to the Lawyer can be exempted under 8(1)(e).

 

However, in this case, the requested "information" has been given by the lawyer to the PA.

 

Is the relationship between lawyer and the PA (different from above !) fiduciary ? Of course not.

 

==================

 

This case is different from others.......in other cases the information was sought from the lawyer/public prosecutor/Attorney General, etc.....

In this case the information is sought from a public authority and not from the lawyer. So, it has to be looked at from a different angle.

 

Also read this blog by jps50:

 

http://www.rtiindia.org/forum/blogs/jps50/3309-fiduciary-relationship-under-rti-act-2005.html

 

Also read:

 

http://www.rtiindia.org/forum/110494-kerala-ag-s-advice-comes-under-rti.html

 

http://www.rtiindia.org/forum/41509-counsel-need-not-reveal-opinion-given-govt.html

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Dear Mr. Prasadji,

The case was filed by CBI with permission to prosecute given by the Bank against 6 persons including me in the specific case. However, the Bank initiated internal action against only one person among the 6 i.e the Departmental in charge and dismissed him on his last day before retirement. In my case the Bank recorded as under and no internal departmental action (not even a show cause given) was taken:Quote: Shri. D.Nanda Kumar had merely followed the practice prevailing in the department and as instructed by the Chief Officer. There is also no other material evidence available in the department to show that Shri. D.Nanda Kumar acted as alleged by the CBI. Unquote. This has already been brought out in the writ petition 1614/2008 (as evidenced by the review note copy of which was taken by me under RTI act & produced to court as document), not contested by the Bank and judgement passed in 2008 and hence the Bank is es stopped from taking any such stand now I think. Tks

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@dnandu

 

I need help in drafting the second appeal saying that it does involve larger public interest. Tks

 

Think about 'larger public interest' in the last grounds, so that all the exemptions u/s 8(1) get defeated by 8(2).

 

Prior to that, as said by @karira sir (para A below) & @RAVEENA_O madam, provide enough reasons that 'legal opinion' available to PA by a lawyer does not come under exemptions u/s 8(1)(e).

 

More over, even if the PA has a relationship with a Lawyer, ‘persons’ in sec 8(1)(e) cannot be connoted to the Public Authority( para B below).

 

Grounds for the prayer or relief:

 

High Court citations on fiduciary relationship:

 

A) (as said in post#23 by @karira sir)

 

******In Supreme Court Vs. Subash Chandra Agarwal (W.P. © 288/2009, dated 02.09.2009), the Delhi High Court [http://lobis.nic.in/dhc/SRB/judgement/02-09-2009/SRB02092009CW2882009.pdf] has expounded as to what is fiduciary capacity. The relevant portion (para-56, 57 & 58) of the order from above mentioned official site is extracted below:

 

[“56. The following kinds of relationships may broadly be categorized as “fiduciary”:

 

  • Trustee/beneficiary (Section 88, Indian Trusts Act, 1882)

 

  • Legal guardians / wards (Section 20, Guardians and Wards Act, 1890)

 

  • Lawyer/client;
  • Executors and administrators / legatees and heirs
  • Board of directors / company
  • Liquidator/company
  • Receivers, trustees in bankruptcy and assignees in insolvency / creditors
  • Doctor/patient
  • Parent/child:

57. The Advanced Law Lexicon, 3rd Edition, 2005, defines fiduciary relationship as

“a relationship in which one person is under a duty to act for the benefit of the other on the matters within the scope of the relationship….Fiduciary relationship usually arise in one of the four situations (1) when one person places trust in the faithful integrity of another, who is a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act or give advice to another on matters falling within the scope of the relationship, or (4) when there is specific relationship that has traditionally be recognized as involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer”

 

58. From the above discussion, it may be seen that a fiduciary relationship is one whereby a person places complete confidence in another in regard to a particular transaction or his general affairs or business. The relationship need not be “formally” or “legally” ordained, or established, like in the case of a written trust; but can be one of moral or personal responsibility, due to the better or superior knowledge or training, or superior status of the fiduciary as compared to the one whose affairs he handles.”] **********

 

 

 

Thus, relationship between ‘PA’ and ‘Lawyer’ could not be connoted as ‘fiduciary’, as the later never asked help for the former’s(in its capacity as a person) expertise in a particular field.

 

B)

 

*******In State Bank of India Vs CIC, the High court of Punjab and Haryana in C.W.P. No. 20566/2008, dated 08/12/2008[http://phhc.gov.in/pdf/fo_lobis/CWP_20566_2008_08_12_2008_FINAL_ORDER.pdf], has categorically clarified about ‘person’ in sec 8(1)(e) of the Act. Apropos of IT Act, 2000, and Indian Evidence Act, 1872, the following is the extract from page-4 to 6 of the esteemed order obtained from the above mentioned official site of the Court.

 

[“… … Firstly, we will consider the argument of the petitioner in respect of exemption falling within the scope of Section 8 (1)(e) of the Act. The exemption is in respect of information available “to a person in his fiduciary relationship”. The question is whether the person mentioned in Clause 'e' is referable to the public authority under Section 2(h) of the Act and what information can be said to be part of fiduciary relationship, not liable to be disclosed. In our opinion, the person in Section 8(1)(e) is not synonymous with public authority which is as defined in Section 2 (h) of the Act. A person as contemplated under Section 8(1)(e) of the Act will be an officer of a public authority who derives some information in the course of his duties for the public authority. It can be a senior functionary of the public authority in whom a junior official confides; can be an information from third party to an officer of authority and such other information disclosed/acquired by him. It is such information which exempted from disclosure. The person under the General Clauses Act, can include a juristic entity but the person under Section 8(1)(e) is not such juristic entity. If the legislature intend to prohibit disclosure of information available to the public authority, it could have very well used the word 'public authority' in lieu of person. But the use of word 'person' in Clause 'e' connote that the information which has come to the knowledge of a man or woman in confidence alone is sought to be exempted. The other aspect is what information can be said to be available in fiduciary relationship. It is difficult to imagine any information which comes to public authority on account of fiduciary relationship. A juristic entity such as the public authority carries out its affairs in accordance with established procedures. In normal circumstances, all orders, commands, directions, affairs and actions are expected to be written. Similarly, a public authority will act on information received in writing. It is needless to say that the information effecting the sovereignty and integrity of India by the security forces etc. is not part of Clause 'e', as such information is part of Clause 'a' itself. Therefore, it is apparent that the information available to public authority cannot be said to be information available to a person in his fiduciary relationship.

The fiduciary relationship is relationship subsisting between two persons reposing trust and confidence in the other. A fiduciary relationship encompasses the idea of faith and confidence and is generally established only when the confidence given by one person is actually accepted by the other person. Mere respect for another individual's

judgment or general trust in his or her character is ordinarily insufficient for the creation of a fiduciary relationship. Their duties of a fiduciary include loyalty and reasonable care of the assets within custody. All of the fiduciary's actions are performed for the advantage of the beneficiary. The examples of fiduciary relations are those existing between attorney and client, guardian and ward, principal and agent, executor and heir, trustee and cestui que trust, landlord and tenant etc. …” ]*******

 

(Emphasis applied by me)

Thus, Hon’ble High Court has clarified that, ‘persons’ in sec 8(1)(e) cannot be connoted to the Public Authority.

 

 

R K Mishra.

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