TCS refuses to share in public, Master Service Agreement with MEA for its passport venture; says it will consult its legal cell

At the high-level meeting held at Moneylife Foundation’s office on Wednesday to discuss the Passport mess in Pune, TCS officials showed hesitancy in making the document public.  Indeed, an earlier CIC decision ordering TCS to make it public has been defied
 

During the Wednesday high-level meeting of the Pune Passport Grievance Forum (PPGF) conveners with top officials of Tata Consultancy Services (TCS) at the Moneylife Foundation office in Mumbai, one of the points raised was making the Master Service Agreement (MSA) between TCS and the ministry of external affairs (MEA) public. This would make responsibilities and roles of both the entities transparent.
 

Shailesh Gandhi, former Central Information Commissioner and RTI activist, who was also present at the meeting, informed that in one of the hearings in 2012, while he was CIC, it was TCS which had shown unwillingness to make the document public. He said, that “we need to know who is objecting to making it public, MEA or TCS? In my experience during a hearing, it was TCS that was unwilling.” Tanmoy Chakrabarty, vice-president and head for government-industry solutions unit at TCS put the onus on the MEA for making it public, when this query was asked by Mr Gandhi at the meeting, but then went on the defensive stating that, “We will have to ask our legal cell.”
 

Vijay Kumbhar, one of the conveners of the PPGF has already filed a CIC complaint against TCS for not putting up the MSA in the public domain. He is waiting for the date of hearing. At the meeting, he brought it to the notice of the TCS officials, being in a public private partnership (PPP) venture with the government body, wherein the MEA has outsourced the above work and has given authorization as well as permission to TCS for the same and as the MEA provides funds for the above and mode of funding is Build, Operate, Transfer (BOT), TCS is public authority.
 


Mr Gandhi, the then CIC, had in a hearing pertaining to TCS on the issue of a Passport Seva Kendra having been built on an allegedly illegal property in Ghaziabad had ordered that the Master Service Agreement should be made public, barring the portion.
 

The TCS representative had brought the copy of the order at the time of hearing. Mr Gandhi in his order had stated that, “The Commission has looked at the agreement and the contentions of the respondent (TCS person). The Commission agrees that the rate mentioned in the contract if disclosed could harm the competitive position of the service provider. In view of this the Commission directs that the rates mentioned in the Agreement can be severed as per the provisions of Section 10 of the RTI Act. The Commission asked the respondent to specifically point out the information in the contract which could be said to be held in a fiduciary capacity. The respondent (TCS) states that he needs to get instructions from the ministry on the matter of disclosure of the Master Service Agreement as part of its Section 4(1) (b) obligations. The Commission therefore adjourns the matter to 1 May 2012 at 05.00pm.”
 

On 1 May 2012, the TCS representative remained absent and asked for more time to consider whether the Agreement should be made public. Mr Gandhi, in his order stated: “Respondent: Absent; The Commission has been informed that the third party Tata Consultancy Services (TCS) has asked for time to voice its objections to disclosure of information. In view of this the Commission adjourns the hearing to 27th June 2012 at 4.00pm. All parties may send their written submissions, if they wish, before 30 May 2012 and copies of such submissions would be sent to opposite parties. Any rejoinders will be sent by the third party M/s TCS, MEA and the appellant to each other and to the Commission before 15 June 2012.”
 

The Commission directed TCS as well as the PIO (MEA) and the appellant to appear before the Commission on 27 June 2012 at 4.00pm to give their arguments.
 

On 27th June, again the TCS representative remained absent at the hearing. However, Tarunima Vijra and Dushyant Manocha, advocates for TCS were present. They asked for adjournment and a fresh date as their senior official VP Singh was travelling. Mr Gandhi denied another date stating that, “The Commission is conscious of the fact that its time is paid by the poorest man in India and it therefore does not have the luxury of giving another adjournment.” Mr Manocha also argued that the information is exempt under Section 8 (1) (d) & (e) as the information is “commercially competitive and disclosing would harm competitive interest of the TCS.”
 

Shailesh Gandhi, ordered the PIO of MEA to disclose information.
 

His decision on 4 July 2012 read as follows:
 

“The Commission had given adequate opportunity of hearing to the third party M/s Tata Consultancy Services (TCS) to explain its objections and put forth its arguments before the Commission to establish that the information sought by the appellant was covered by the exemptions of Section 8(1)(d) &(e) of the RTI Act.
 

“The third party TCS has claimed exemption under Section 8(1) (d) & (e) of the RTI Act but has given no explanation as to how the information sought by the appellant is exempt. The third party TCS has undertaken a commercial transaction with the ministry and has been given the authority to run the Passport Seva Kendra on behalf of the government. The government has effectively sub-contracted its function through a contractor. 
 

“Since the third party TCS has not given any arguments to support its claim for exemption under Section 8(1) (d) & (e) of the RTI Act the Commission does not have any basis for accepting whether the said claim is justified. Since no justification had been provided for the claim of exemptions the Commission cannot see any justification for denial of information to the appellant.
 

“This is information that can certainly be obtained by the ministry from TCS if it is not available and would squarely fall in the definition of information as defined under Section 2(f) of the RTI Act which states, ‘information’ means ‘any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force’. When the government asks a private party to conduct any functions which it has been conducting earlier in the nature of providing vital services to the citizens such as providing a passport, it certainly has to be able to access all information regarding the activity from the private body to which it has given the contract.
 

“The Appeal is allowed.
 

“The PIO is directed to provide the information to the appellant before 25 July 2012.” -Shailesh Gandhi, Information Commissioner 04 July 2012.
 

Tanmoy Chakrabarty has promised the PPGF to seek advice from TCS’s legal cell and revert at the earliest.
 

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Comments
Mahiti Adhikar Manch
9 years ago
Dear friends,

In continuation of my msg on 15th, just to keep you updated, tried again for appointment today as got message on passport site earlier at 3.00 pm. Tried to get appointment for 01.04-13 for 4 passports.

Got appointment only for my daughter's passport but rest of us again to contact on 18-03-13. The slot got closed at 3.07. Total appointments given 1010. So now for each person different dates. So visit for passport at different dates. At least while submitting in hard copies you could do submission at one go for all the members.

It is not necessary that all appointments taken will come on that day and time, there will be some not coming on the allotted appointment.
So off-line passport application also need to be accepted as it was done before on-line application started.

Just to keep you updated, will try again tomorrow and post the msg, so from 10-03-13 I have been trying to get appointment got on 17th March for one application.

Yours in service of RTI
Bhaskar Prabhu
Mumbai
Vinita Deshmukh
Replied to Mahiti Adhikar Manch comment 9 years ago
Try a walk-in appointment for the rest of you, by visiting the Passport Office. This way you might get the same date for all of you.
Mahiti Adhikar Manch
Replied to Vinita Deshmukh comment 9 years ago
Dear Vinitaji,

Yes, that is what I will have to do and what passport applicants were doing earlier. But when I went to the pass port seva kendra they had earlier said it is only in online. After such episode they said visit passport office with my on-line registration and latter they will give me the dates and so on. Then what is the necessary for registration compulsory they need to accept passport application as they were doing earlier times, accepting in hard copy.
There should be option eighther go off-line or on-line. May be TCS gets paid for per passport registration.
CA PRADEEP AGARWAL
Replied to Mahiti Adhikar Manch comment 9 years ago
harassment? By another method
CA PRADEEP AGARWAL
Replied to Mahiti Adhikar Manch comment 9 years ago
CA PRADEEP AGARWAL
Replied to Mahiti Adhikar Manch comment 9 years ago
They are worse than public sector/Govt sector I suppose, they should give best services, FEEL you should make complaint at GRIEVANCE CELL-MINISTRY OF EXTERNAL AFFAIRS
CA PRADEEP AGARWAL
9 years ago
See the plight of MCA both TCS and Infosys slugging out, sufferers who?
Seshamani
9 years ago
The argument of TCS objecting to disclosure of its commercial agreement with the MEA on the Passport Services, during the RTI hearing, is misleading. The following points should be considered:
1. Public disclosure prior to the decision in favour of TCS would have commercially affected TCS.
2. After the above event, it is not commercially harmful to TCS to have the terms disclosed to anybody, inn fact this should rightfully be open commercial information, as is the case with ANY government tender anywhere in the country, for any item or service.
3. At the time of the request for disclosure as reported in the Moneylife article, it was factually wrong to state that disclosure would have been commercially harmful to TCS.
4. The disclosure of the entire agreeement in the concerned website should be required in any case of PPP and public services, more so in this case, considering that the agreementg would have specified the terms of reference and therefore details of the services to be provided and standards to be maintained.
5. It is interesting the the Tata Group often requires non-disclosure of their terms of Government dealings, which makes one wonder why such disclosure is so damaging for the Tata Group. It can only make one think that the termks are not fair to the People of India.
6. Singur is another case which comes to mind, but that was a public matter, so the fact of the legal binding on the Government of West Bengal not to maintain secrecy was in the open, but, by the very nature of such dealings, there must be many similar things in the secret hideaways within the Tata cupboard.
CA PRADEEP AGARWAL
9 years ago
A contractor is bound to follow Rules applicable to parent organisation
CA PRADEEP AGARWAL
9 years ago
Being Professional should not comment, but, not happy with the working of Tata's
manoharlalsharma
9 years ago
It is a matter of uncompetent staff and wasting of valuable time of AAM AADMI.
V Rajendran
9 years ago
It is time we did something seriously to get information on such critical issues. Some Public Sector institutions too are no exception. Though SBI comes under the ambit of RTI, I once raised a query to SBI seeking some details about their cards. SBI replied stating that card issue is outsourced to a private firm, which does not come under the purview of RTI queries.
V Rajendran
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