A Pension Trust controlled and substantially financed by the government is a Public Authority under the RTI Act. This is the 21st in a series of important judgements given by Shailesh Gandhi, former CIC, that can be used or quoted in an RTI application

A Pension Trust controlled and substantially financed by the government is a Public Authority as defined by Section 2 (h) (i) of the Right to Information (RTI) Act. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner, ordered the Delhi Vidyut Board (DVB) Employees Terminal Benefit Fund-2002, to appoint a Public Information Officer (PIO) and suo moto disclose information under Section 4 of the RTI Act.

“The Pension Trust is a public authority according to the definition given in Section 2(h)(i) of the RTI Act. The Pension Trust is directed to appoint a PIO and First Appellate Authority before 31 March 2010. The Commission directs the Pension Trust to ensure that it meet its obligations to suo moto disclose information under Section 4 of the RTI Act by 30 April 2010,” the Central Information Commission (CIC) said in its order dated 26 February 2010.

New Delhi resident SK Choudhary, on 15 April 2009 sought information from the PIO of Delhi Transco (erstwhile DVB) about the Pension Trust. He sought information about...

a) Copy of documents in relation to formation of Pension Trust.

b) The procedure to collect funds from successor entities of DVB in lieu of pensionary benefits which need to be paid to the employees on and after superannuation.

c) The status of funds in the Pension Trust at the time of unbundling of DVB.

d) The number of pensioners at the time of unbundling of DVB.

e) The number of pensioners as on current date and the total available cash in the Pension Trust.

f) Whether all distribution companies are contributing the prescribed amount towards pensionary benefits of the erstwhile DVB employees.

g) Action taken by the government of National Capital Territory of Delhi (GNCTD) to make up for the shortfall in funds of the Pension Trust.

The PIO did not reply to the RTI. However, through a written submission, he mentioned that DVB Employees Terminal Benefits Fund-2002 (ETBF) the Pension Trust which was not under the administrative control of the department and therefore he was unable to provide information to the appellant.

On 27 April 2009, the PIO, under Section 6 (3) of the RTI Act, transferred the application to manager of the Pension Trust. KG Vishwanathan, the manager of DVB ETBF-2002 stated that he received the RTI application only on 31 August 2009.

During a hearing, he told the Commission that ETBF-2002 has taken an opinion from standing counsel and submitted it before the Board of Trustees. The opinion of the Additional Solicitor General of India (ASG) was also obtained which advised that DVB ETBF-2002 is not a public authority, Mr Vishwanathan said.

When asked about the funding received by the Trust from the government, he said the DVB, a GNCTD undertaking, had provided Rs443.10 crore and the Delhi government provided one time funding of Rs886.00 crore to the Trust. He also accepted that the Trust is using an office provided by Delhi Transco.

In an interim order on 5 January 2010, Mr Gandhi asked the manager to submit audited income and expenditure statements and the balance sheets from the inception of DVB ETBF-2002 until present to the Commission to determine whether it is public authority.

During a hearing on 26 February 2010, the Commission said it received the documents from the manager, of ETBF-2002 and the main issue before it is whether the Pension Trust is a public authority within the ambit of the RTI Act or not.

Section 2(h) of the RTI Act defines public authority as…

2(h) "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)
 

Mr Vishwanathan also submitted a copy of the opinion given by ASG Parag Tripathi on which the Trust has relied to refuse information. The ASG has mentioned Section 3(d) of the Tripartite Agreement under which the Trust was formed which states:

3(d) The government shall create a Pension Fund in the form of a trust and the pensionary benefits of absorbed employees shall be paid out of such Pension fund.

1)The Principal Secretary (Power) of the GNCT of Delhi shall be the chairperson of the Board of Trustees which shall include representatives of the Departments of finance, personnel, labour, the employees and experts in the relevant field to be nominated.

2)The procedure and the manner in which pensionary benefits are to be sanctioned and disbursed from the Pension Fund shall be determined by the government on recommendation of the Board of Trustees.

3) The government/DVB shall discharge their pensionary liability by paying in lump sum a one-time payment to the Pension Fund Trust the pension or service gratuity and retirement gratuity for the service rendered till the date of transfer on the DVB employees in the successor entities.

4) The manner of sharing the financial liability on account of payment of pensionary benefits by the successor entities shall be determined by the government.

5) The arrangements hereunder shall be applicable to the existing pensioners and to the existing employees on their superannuation in the new entities and shall not apply to the employees directly recruited by the new entities for whom it shall devise its own pension scheme and make arrangements for funding and disbursing the pensionary benefits.

6) The balance of provident fund standing at the credit of the absorbed employees on the date of their absorption in the new entities shall be transferred to the new provident fund Account of the employees to be retained and operated by the Trust.

According to the ASG, the Pension Trust caters to no public function or purpose and it is exclusively maintained and run for the benefit of its members. The Commission said it does not find merit in this argument. Whether a body performs public functions or for public purpose is not a criterion to decide whether it is a Public Authority under Section 2(h) of the RTI Act.

Mr Gandhi said, the Commission feels that given that the Pension Trust provides terminal benefits to government servants, it certainly performs a public function, though this matter is not the decisive criteria to determine whether DVB ETBF is a Public Authority.

“...from the documents on records it appears that out of ten members of the Board of Trust, five persons are appointed by the government ex-officio. The Principal Secretary (Power) is the chairperson of the Pension Trust (as per the Tripartite Agreement); chairman & MD, Delhi Transco, Principal Secretary (Finance), Secretary (Law) and Secretary (Labour) are the four other ex-officio members of the Pension Trust. Therefore five of the ten members of the Board owe their positions on the board due to their nomination by the government. Thus it can certainly be stated that the government is in control of the Board of Trustees of the Pension Trust through its nominees,” Mr Gandhi noted.

In addition the Pension Trust has received Rs860 crore as one-time corpus from the GNCTD and Rs443.10 crore from DVB taking the total funding it received from the government to Rs1,303.1 crore. “According to the balance sheet on 31 March 2008, Rs1,295.5 crore is the total amount available with the Pension Trust. This mean the one-time amount given by the GNCTD alone is more than 66% of the amount now available with the Pension Trust. Therefore, the Commission finds that the GNCTD substantially finances the Pension Trust," the Commission said.

The CIC, in its order said that it comes to the conclusion that the Pension Trust is controlled and also substantially financed by the government and thus the Pension Trust is a Public Authority as defined by Section 2 (h)(i) of the RTI Act.

“...the Pension Trust is a Public Authority according to the definition given in section 2(h)(i) of the RTI Act. The Pension Trust is directed to appoint a PIO and First Appellate Authority before 31 March 2010. The DVB ETB Fund is directed to provide the information to the Complainant before 15 April 2010 with a copy to the Commission,” the order said.

It further added, “...it appears that most of the information sought by the complainant is information that should be suo moto disclosed by the respondent in accordance with its mandatory obligations under Section 4 of the RTI Act. The Commission directs the Pension Trust to ensure that it meet its obligations to suo moto disclose information under Section 4 of the RTI Act by 30 April 2010. A compliance report in this regard must be sent to the Commission before 7 May 2010.”

CENTRAL INFORMATION COMMISSION

Decision No. CIC/SG/C/2009/001141/6992

https://ciconline.nic.in/cic_decisions/SG-26022010-12.pdf

Complaint No. CIC/SG/C/2009/001141

Complainant                                                 : SK Choudhary

                                                                     New Delhi- 110058.

Respondent 1)                                             : KV Krishna Kumar

                                                                     Public Information Officer & DGM(HR)

                                                                     Delhi Transco Limited,

                                                                     Pension Trust, GNOCTD,

                                                                     Shakti Sadan, Kotla Road,

                                                                     New Delhi

Respondent 2)                                             : KG Vishwanathan

                                                                     Manager

                                                                     Delhi Vidyut Board ETBF- 2002 (Pension Trust)

                                                                     RPH Office Complex,

                                                                     New Delhi - 110002