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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