Monday, November 21, 2011

TRY SEC 80 OF CIVIL PROCEDURE CODE FOR RTI


        TRY SEC 80 OF CIVIL PROCEDURE CODE FOR RTI

Section 80 of Civil Procedure Code 1908 states as under:

“80. Notice— [54][(1)][55][Save as otherwise provided in sub-section (2), no suits shall be instituted against the Government (including the Government of the State of Jammu & Kashmir) or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of—

(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;

(b) in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway;

(bb) in the case of a suit against the Government of the State of Jammu and Kashmir the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;

(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district;

and, in the case of a public officer, delivered to him or left at this office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.”

Thus it is mandatory that such a notice should be issued to Secretary of Ministry or Department overseeing public authority from whom you have failed to get proper information under RTI Act.

This notice can be used as an added avenue, especially because second appeals and complaints to CIC/SICs are taking too long a period. Consumer forums and National/State Human Rights Commissions also take one to two years to decide. Reference to Secretary may sensitize him, head of public authority and PIO/FAA to respond. I am attaching format of notice which can be used with changes to suit your case.

_______________________________________________________________________




From:
Name:
Address:
Cell No.
Email ID
____________________________________________________________________

Date: __________                                                

by  Regd or speed ad post & email

To,
Secretary,
_________________Ministry [ for central govt.] OR

_________________ Department [ for state govt.]

______________________


Dear Sir,

Subject:  NOTICE UNDER SEC 80 OF Civil Procedure Code 1908

I had sought certain information from PIO of public authority falling under your ministry / department; under The Right to Information Act 2005 vide my RTI application dated __________ [copy enclosed with proof of mailing or receipt].

02. I have not received reply from PIO within period mandated in RTI Act.

OR

Since I did not get reply within stipulated time I filed first appeal dated ______. Copy of appeal is enclosed with proof of its mailing or receipt.

OR

I have received reply vide letter No. __________ dated ______ [copy attached] and it has following deficiencies:

A] Reply is delayed beyond stipulated time limit under RTI Act

B]

C]

03. The foregoing amounts to breach of my rights under RTI Act. This also leads to violation of Fundamental Rights, Human Rights as defined by United Nations Declaration and Consumer Rights under Consumer Protection Act. This situation has given rise to cause of action for legal action against head of concerned public authority, its PIO [and First Appellate Authority].

04. For your ready reference, I quote from judgement dated 02-08-2005 of Hon’ble Supreme Court of India in Writ Petition (civil) 496 of 2002 -Salem Advocate Bar Association, Tamil Nadu v/s Union of India, as under:

             
                “Having regard to the existing state of affairs, we direct all Governments, Central or State or other authorities concerned that whenever any notice is received by them, they have to ensure that replies to notices are sent within the period stipulated time. The replies shall be sent after due application of mind. Despite this, if the court finds that either the notice has not been replied to or the reply is evasive and vague and has been sent without proper application of mind, the court shall ordinarily award heavy costs against the Government and direct it to take appropriate action against the officer concerned including recovery of costs from him.”

            “Every public authority shall appoint an officer responsible to take appropriate action on a notice issued under S.80 of the Code of Civil Procedure. Every such officer shall take appropriate action on receipt of such notice. If the Court finds that the concerned officer, on receipt of the notice, failed to take necessary action or was negligent in taking the necessary steps, the Court shall hold such officer responsible and recommend appropriate disciplinary action by the concerned authority.”

05. Before I proceed further, I request you to kindly supply or cause to be supplied complete, correct and relevant information sought by me immediately and also order payment of an amount of Rs.50000/-[Rs. fifty thousand only], towards damages, compensation, cost, inconvenience, mental agony and tension and breach of my fundamental rights under article 19.1.a of Constitution of India and human rights; latest within 60 days from the date of receipt of this notice by you. 

06. If I do not receive satisfactory reply to my above mentioned queries within a specified time of two months from the date of receipt of this notice by you, it will be construed by me as contempt of court and may be proceeded against in a Court of Law.

07.In addition to above, I request you to please order departmental action under service rules against erring officers of concerned public authority for defiance of law, dereliction of duties and infringement of aforesaid rights of a common Indian,  under advice to me.

08. As Secretary of Ministry / Department, you should not tolerate such bluntant violation of laws passed by Parliament, which will again amount to abetment of violation of laws of the country and rule of law on your part.

09. Please note that this notice is without prejudice to writ which I may file in Hon’ble High Court under article 226 of the Constitution for violation of my fundamental rights.

10. I also quote for your information:

a. In Lucknow Development Authority V/S M .K. Gupta the Apex Court held that when public servants by malafide, oppressive and capricious acts in performance of official duty causes injustice harassment and agony to common man, renders the State or its instrumentality liable to pay damages to the person aggrieved. And the State or its instrumentality is duty bound to recover the amount of compensation so paid from the public servant concerned. (1994) 1 SCC 24,

b. “If   civilization   is   not   to   perish   in   this   country   as   it   has perished in some others too well known to suffer mention, it is  necessary   to  educate  ourselves   into  accepting  that,  respect   for   the   rights   of   individuals   is   the   true   bastion   of   democracy.   Therefore, the State must repair the damage done by its officers to   the   petitioner's   rights.   It   may   have   recourse   against   those officers."-  Hon’ble Supreme Court in Rudul Sah v. State of Bihar (1983) 4 SCC 141.


Yours faithfully,


[ __________]

Encls: as above

Copies by post and email [if any] to:

1. Head of Public Authority and his address

2. PIO and his address

3. First Appellate Authority [ if first appeal is filed] & his address


Sunday, November 20, 2011

Gujarat University- Proactive Disclosure


Date: 20-11-2011                                        By post & email

The Vice Chancellor,
Gujarat University,
Navrangpura, Ahmedabad – 380 009

Dear Sir,

Subject: Proactive Disclosure under The Right to Information Act 2005.

While browsing website of University http://www.gujaratuniversity.org.in/web/index.asp, I did not locate above disclosures, which University should have disseminated and placed in public domain by 06-02-2006 as per section 4.1.b of RTI Act 2005. I am sure this august and oldest University of the State would have definitely complied with provisions of law enacted by Central Govt.

I therefore request you to kindly inform me link on the website of above disclosure. In case University has made such disclosures but has not preferred to upload on its website, please mail me soft or hard copies of such disclosures. I would be happy to know reasons if any, for not uploading and updating above disclosures on website of the University.

05. I humbly quote:

While transparency reduces corruption, good governance goes beyond transparency in achieving openness. Openness means involving the stakeholders in decision-making process. Transparency is the right to information while openness is the right to participation.
-Narendrabhai Modi Hon’ble CM Gujarat at http://www.narendramodi.in/quotes     

Yours faithfully,

J. P. Shah

Friday, November 18, 2011

Pendency at CIC & SICs


Date: 17-11-2011   

Dear RTIian,

Subject: Pendency at CIC & SICs

I am attaching statistics compiled by Shri C. J. Karira of Secunderabad. The data reveal that due to paucity of ICs, RTI is being consigned to death bed systematically, surreptitiously and corruptibly by Govts and other vested interests. Citizens are losing faith in RTI due to such alarming back-log. PIOs and FAAs do not take RTI seriously any more. Efficiently functioning CIC and SICs are sine qua non for effective RTI.

2. Govts at Centre and States are trying to puncture RTI by interalia not posting adequate number of ICs to effectively match flow of second appeals/complaints. Those posted as ICs are taking this assignment as time pass after retirement. No committed and capable ICs are posted by resorting to manipulation in appointment process. ICs are not provided office and human infrastructure so that there is no efficient functioning at CIC/SICs.

3. In Gujarat, second appeals/complaints filed in early 2008 are being heard now. Nearly 8000 appeals and complaints are pending. Recently new CIC and one IC are selected and will start functioning hopefully shortly. At present there is only one IC without CIC at GIC. A senior citizens’ NGO has filed writ in Sept 2011 for appointment of 6 ICs in GIC. It is pending. In late 2009  Shri Amit Jethwa [murdered on 20-10-2010] had filed PIL for appointment of 2 ICs and he succeeded in getting appointed two ICs in March 2010 through High Court. I had given inputs and refined this PIL.

4. In my humble opinion, we should file a PIL in Supreme Court, as it affects fundamental rights of Indians all over country. Activists in or near Delhi can take up this matter. Others can provide finance and inputs. I am prepared to initially contribute Rs.5000/- for this purpose. If we can get citizen centric advocate who will not charge his fees in larger public interest, then cost of litigation will be less than Rs.10000/-. At the most with advocate fee etc I think cost of PIL will be not more than Rs.75000/-. It will not be possible for me to visit Delhi due to health problems.

5. Govts do not understand any language except language of higher judiciary. Hence PIL in SC is the only effective way out. Recently as SC decided in PIL of All India Road Network Users Association, we will be required to first issue notices to Central and all defaulting State Govts before filing PIL. Hence let us start with first step of legal notices.

6. I hope my above submission will be taken into consideration by you, being one of those who care for RTI, rule of law and good governance.

Yours sincerely,
J P Shah

Encl: 1

_________________________________________________________

Speaking on the eve of Indian Independence Winston Churchill said "Power will go to the hands of rascals, rogues and freebooters. All Indian leaders will be of low caliber and men of straw."  The Indians and Indian politicians have proved that the premonition of Winston Churchill is true

Friday, November 04, 2011

Suggestions on CITIZENS RIGHT TO GRIEVANCE REDRESS BILL 2011


Date:  04-11-2011                                                                By email                                                                      
To,
Joint Secretary,
Dept of Administrative Reforms and Public Grievances,
Ministry of Personnel, Public Grievances and Pension,
Govt of India, New Delhi

Dear Sirs,

Suggestions on CITIZENS RIGHT TO GRIEVANCE REDRESS BILL 2011


I thank Govt. of India and your Ministry for having invited suggestions from public on captioned bill. I humbly make following suggestions:

01. Section 9.1.a stipulates time for redressal by Grievance Redress Officer [GRO] as 15 days while section 9.1.b states it as one month. It needs to be reconciled.

02. In section 10 “under advice to complainant” words should be added at the end of section, so that complainant himself may not file appeal with HOD. This will save him money and time. Complainant will be kept informed of status also.

03. Powers vested in Head of Department [HOD] under section 11.3.I.[a] can be misused by HOD by summoning [and may be repeatedly] the complainant also to his office, while complainant may or may not desire or afford [money and time] to be personally present before HOD on his complaint. HOD being part of same office or department, he will try to favour GRO and other employees [as is happening in case of First Appeals under RTI]. Complainant will be put to unnecessary expenses, time and inconvenience etc in respecting summons of HOD. I suggest that section 11.3.I.[a] may be made compulsorily applicable only to govt. officers or employees connected to processing of complaint and issue raised therein. Personal attendance of complainant before HOD should be made optional to complainant, as is the case in appeals under RTI Act. There could be written or audio or video options to complainant to present his say before HOD, if he so desires.

04. There appears to be confusion on jurisdiction of State and Central Commissions. From draft of the act, it appears that second appeals against all public authorities [of central and state Govts] can be preferred to State Commission. Thus second appeal against say a branch of public sector bank in Gujarat will be decided by Gujarat State Commission, even when this bank is a central govt public authority. However appeal against decision of State Commission will lie with Central Commission.

While in overview document [institutional structure] of this act, it appears that second appeals of public authorities of state govt will be heard by State Commission and second appeals of all central govt public authorities irrespective of their location will be decided by Central Commission.
This needs clarity.

05. Section 14.b provides for 5 commissioners in addition to Chief Commissioner of State Commission. I suggest that this act should provide minimum number of commissioners [preferably 3] also. In case of RTI many States [including Gujarat] did not provide adequate number of information commissioners which has paralyzed RTI in these states with very high level of pendency. I also suggest that maximum number should be 10 in state commission. Keeping in view attitude of govt employees, work culture, infrastructure, etc there will be huge rush of appeals. HOD will be redundant and ineffective [waste of time and money for citizens] in practice as is the case with first appellate authorities under RTI. HOD will never dare to go against his own office staff for various reasons [including sharing corrupt income and also because other staff knows about misdeeds of HOD in most of offices].

06. Similarly in case of Central Commission number of commissioners should be minimum 10 and maximum 15, if it has to attend second appeals of central public authority and third appeals of state public authorities.

07. There is no time limit for disposal of appeals by commissions u/s 25.1 and 42.1. It should be 30 days from date of receipt by commission.

08. Penalty to be imposed has been left to rules to be made by state and central govts. The amount has not been quantified and hence some states may provide trivial penalties [say Re 1 per week of delay] which will not be deterrent to employees. Hence minimum amount of penalty should be quantified in this act itself. It could be even some percentage of basic salary of erring employee. It should be deterrent enough for employees.

09. There is no provision of compensation to the complainant who has been wronged. He will have to move consumer or other forum for this purpose. While employee will be penalized, the harassed citizen will not be compensated for waste of money, time and hardship sustained by him. There should be provision of compensation with minimum amount per day of delay. RBI has in 2008 provided such compensation to customers in case of failed ATM transactions [amount debited in account, but no cash dispensed at ATM of bank] being  Rs.100 per day beyond 7 working days of filing complaint till amount is refunded to the customer by bank. Circulars are at www.rbi.gov.in.

10. Act is silent on how complaint is to be filed. It should be provided on the lines of RTI Act [section 6]. No format should be stipulated, only minimum requirements should be insisted. Format could be recommendatory. Language of complaint should be English, Hindi and official State language. Reply from GRO or HOD and Commissions should be in the language of complaint.

11. In sections 27 & 40 word “establish” should be replaced by ‘justify’.

12. Under section 46 [Reporting] following details should also be incorporated:

Amount of penalty imposed, amount of penalty recovered, number of employees on whom penalty is imposed and recovered and amount of unrecovered penalty.

13. Under RTI there is no mechanism at State or Central Information Commissions or public authorities to track if penalties imposed on PIOs are actually recovered and credited to govt accounts. Huge amount of penalty is unrecovered from PIOs. In this proposed act, a system should be provided so that all penalties are recovered and credited to govt account and HOD should be made accountable for its compliance and in case of non-recovery from salary of erring employees, it should be recovered from salary of HOD]. Data on monthly basis as stated in paragraph 12 supra should be also made available to public.

14. Challenging orders of HOD, State or Central Commissions in High Court or Supreme Court by employees against penalty or disciplinary action under proposed act should not be at govt [public] cost. The employee should bear cost himself personally. In RTI PIOs are challenging decisions of information commissions at govt [public] cost, even when penalty is imposed in their personal capacity. Thus public is harassed by public servants at public cost with no accountability to public in a democratic setup. What a poor state of governance!!!

15. Section 51.2 is incomplete. Rules will have operational impact and hence these should have been mentioned before inviting public suggestions.

16. It should be ensured that not providing on demand citizen charter of his office free of cost to citizens by GRO or IFC or HOD will also attract penalty provisions of this proposed act.

17. Selection of commissioners and chief commissioners should be based on open advertisement, as recently followed by Govt for Information Commissioners for CIC. Search committee should take into consideration applications received in reply to advertisement or directly from citizens, in addition to those whom the committee searches out.

18. There should be time limit of 3 days for complaints lodged at IFC, for onward submission to GRO, otherwise such complaints will be kept pending for days at IFC before forwarding to GRO. Delay at IFC should attract per day penalty to erring employee, like APIO under RTI Act 2005.

19. Success and real benefit to common men is totally dependent on contents of citizen charters adopted by public authority. It is the heart of this citizen-centric mechanism. There are no provisions in proposed act as to maximum time limits to be decided while preparing citizen charter. Some Govt dept may for example provide 12 months for ration card or passport or water connection or electric connection. Hence it should be stipulated that citizen charter for each public authority should be approved [including annual revision] by a committee consisting of three officers who are third, fourth and fifth senior most in rank from top in public authority or ministry or department of state govt at capital. For example in case of bank, committee may consist of senior most general manager, Dy. General Manager and Asstt. General Manager at Head Office.

20. A common citizen is not aware of complexity of govt structure and hence it should be mandated that any govt. office receiving complaint under this act should forward to appropriate GRO within 3 days of its receipt under advice to complainant. Delay beyond 3 days should attract penalty per day of delay against head of that office.

21. Like RTI Central / Nodal Point concept [mandated by DoPT] should be replicated in this act itself. All offices of District Collector/Magistrate should be central or nodal point for receiving all complaints under the proposed act. Complaint should be forward to appropriate GRO within 3 days of receipt under advice to complainant. In this case also delay should attract penalty per day of delay.

22. It should be made mandatory to mention official mobile number [if any], email ID, landline phone and fax number [if any] and full address with PIN number [ it is must for speed post] of each officer who signs letters under this act. All govt officers should have email IDs [except at village level] connected to his designation and not in personal name.

23. It should be provided in proposed law that complainant can be represented at hearings at HOD, State or Central Commissions by a duly authorized agent. This is necessary specially in case of illiterate, semi-literate and others who do not know working of govt. offices or who want to present their version without traveling to place of hearing by authorizing some other person to represent him at hearings.

24. State and Central Commissions should have benches in other parts of state/country or mobile benches at least. Govt needs to go to the door of the citizens, rather than citizens roaming around govt. offices frequently.

25. Token filing fee of Rs.5/- be levied by way of court fee stamp or revenue stamp or postal stamp or non-judicial stamp/franking for each complaint. Paying filing fee will make complainant a consumer under Consumer Protection Act 1986, so that he can approach consumer forum if this mechanism under proposed act does not work properly. Now RTI applicants are moving consumer forums for solving their RTI problems after NCDRC on 28-05-2009 in Revision Petition Nr. 1975 of 2005 held that RTI applicant is a consumer under CPA, since he has paid fee.

26. There should be penalty provisions for HOD also [like GRO], otherwise like first appellate authorities under RTI, it will not be answerable or accountable to any law, except service rules for violation of act of Parliament. This never works in any govt establishment.