Misuse of Privacy Clause

By Madabhushi Sridhar | THE HANS INDIA |   Mar 06,2018 , 05:40 AM IST

 
Misuse of Privacy Clause
Misuse of Privacy Clause

Only labour welfare measure for a contract labour or outsourced employee is the provident fund, for which the law says 12 per cent of salary has to be contributed compulsorily from employees while the employer has to give equal amount, which has to be credited in PF account of the employee. 

In recent times, the CIC received several RTI applications pointing out that many private employers collect this amount from the employees but do not deposit the same with PF account along with their contribution. The PF officers have every authority to act on this complaint and initiate action against defaulting employers, which often they don’t, according to many employees. 

Such victims of employer’s illegal action found a new tool in RTI Act to seek information from authorities about their action (read inaction) against erroneous employers. They also ask information about how many employee’s PF contribution was credited etc. The CPIOs bluntly deny information saying it was their private or personal information and invoke the Section 8(1)(j). In fact the wage is fixed by the Wage Board and 12 per cent also is fixed as PF contribution. 

The PF account cannot be equated with the bank account because the former does not contain any deductions or addition of other amounts like that in latter accounts. It’s closed mind and harassing mindset of officers to deny this information and also a misuse of privacy clause to deny the genuine labour about their information about PF and it also results in denial of their own money to themselves. Authorities neither perform their duty nor give information. 

N Janardhan filed an RTI application seeking copies of documents relating to 1988-89 submitted by Chetan Jaywant Patil through his employer before PF office while joining the PF scheme, copies of document about PF subscription deducted from the payment of Chetan Patil and share of employer deposited from July 1988 to March-1989 with PF office by his employer.

During second appeal, the Commission directed the respondent authority to provide complete information to the appellant, within 15 days and directed A C Pagariya, CPIO, to show-cause why maximum penalty should not be imposed against him. The CPIO stated that the RTI dated 02.02.2016 was received by the Department on 23.02.2016 and Jagdish Tambe was the CPIO at that time. Then Commission directed Jagdhish Tambe, CPIO, as on date of filing RTI and also A C Pagare, CPIO, to show-cause why maximum penalty should not be imposed upon each of them. Pagare explained: 

 “I have taken charge as CPIO of Regional Office, Nasik on 16.04.2017. On assuming charge, I have attended the case and has given the information as per RTI application on the basis of available records to Shri Nagraj Janardhan Patil on 04.08.2017 vide by Post. The information has also handed over to the Applicant in person on 07.08.2017 which is acknowledged.

I have taken immediate action on RTI application as per Hon’ble CIC order in time and the information has been furnished on the basis of available records as directed by the Hon’ble CIC.”

Jagdish Tambe, RPFC-I explained:

“1.First and foremost I tender an unconditional apology for any unforeseen event or action that would have offended the Hon. Commission in the matter.
2.….
3.The application …is promptly replied vide letter dt 03.03.2016 i.e. within 8 days. The application is seen forwarded to the branch concerned and the reply from the ‘deemed CPIO’ is immediately forwarded to the applicant duly furnishing the details of the appellate authority. 
4.…. The interpretation and action taken by the CPIO have been upheld by the First Appellate Authority. This strengthens the case that there is no malafide intention on the part of the CPIO. ….
5.The applicant in the instant case has sought information on provident fund contribution of a third party, which included financial details of that person. As provident fund contribution is not a public information and pertains to the individual concerned and that such personal information has implication of being misused, the same cannot be provided. Various decisions of Hon. CIC, in past have held the same principle and this the information sought is found to be exempt from the provisions of the RTI Act, 2005 as per Section 8(1)(e) and 8(1)(j).
6.…
7.On account of being transferred out from Regional Office Nashik I had relinquished charge on 03.06.2016 hence the subsequent issue of implementation of the orders of the Hon. C.I.C. is required to be handled by the present CPIO and I have no role in it. Till I was CPIO, I have sincerely tried to justify my role.
8.I have been working as CPIO since the inception of the R.T.I Act and as a matter of fact have been dealing with hundreds of applications every year. I have been promptly and meticulously replying to the applications, to the satisfaction of the applicants and as a result the issue of appeal before Hon. CIC has hardly ever arisen. This itself shows that in general the implementation of the provisions of the Act have been proper for more than a decade at my end.
9.As a matter of fact till date no appeal before Hon. C.I.C. has ever gone against my interpretation and implementation of the provisions of the RTI or decision given on RTI application. This highlights my past record as a rightful executive in the role of CPIO.
10.Subsequently I have been delivering lectures in the Zonal Training Institute for 6 states and offices on R.T.I. During my tenure at Zonal Training Institute, Ujjain in 2016-17, I have been actively disseminating information and clearing doubts of participants and officials on various provisions of RTI, thereby facilitating effective implementation. ….
11.Some of the Hon. CIC judgments ordering that non disclosure of third party details or data held in fiduciary relationship as proper. ..as discussed below-

The details of transactions in the bank accounts of the customers are held by the Bank in its fiduciary capacity. Income tax returns filed by the assessee are also confidential information submitted in fiduciary capacity. {CIC decision dated 30.03.2006, Farida Hoosenally v. Income-tax}. In the instant case the provident fund details and transactions therein pertaining to an individual are held by EPFO n fiduciary relationship. Hence the judgment is applicable.

The information about the personal details of the employees as held by the public authority in a fiduciary capacity. Such information held in trust is not open to disclosure. [CIC decision dated 31.05.2006, Ajay Pal Singh v. State Farms Corporation of India Ltd]. In the instant case the provident fund details and transactions therein pertaining to an individual include their personal details too and the same are held by EPFO in fiduciary relationship. Hence the judgment is applicable.

Held that the matter connected with an employees provident fund is exclusive and personal to that employee and exempt u/s 8(1)(j). [CIC decision Smt. Chandrakala Bai v Western Coalfields Limited. [F. No. CIC/AT/A/2008/00128 DT 09.07.2008]

Held that the provident fund is not a public fund of an individual employee. Disclosure not permitted under section 8(1)(j). [CIC decision Shri Ajit Lakhani v Bhabha Atomic Research Centre, Mumbai. [application No CIC/WB/A/2006/00378 dated 09.02.2007].

12.In view of the arguments put forth I submit that there has been neither any delay nor any malafide intention or action on my part to invite penal provisions. Hence I hereby humbly plead to be absolved of any charges ….”

The Commission found that information was furnished after a delay of nearly 15 months and it a fit case for imposing penalty considering incomplete and delay caused in providing the information, besides, denial of RTI application on illegal and illogical grounds. 

The Commission directed the respondent authority to provide point-wise information and imposed penalty of Rs 25,000 on Jagadish Tambe, the then CPIO. (Based on decision in CIC/EPFOG/A/2016/294053, Nagraj Janardhan Patil v. PIO, EPFO, Nasik, on 20th February 2018)
 



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